Findings Of Fact This hearing was occasioned by the Respondent's denial of (an) environmental permit(s) requested by the Petitioner, Baker Cut Point Company, a corporation owned by James C. Dougherty. The Respondent has asserted permit jurisdiction pursuant to Chapters 253 and 403, Florida Statutes, and attending regulatory provisions of Chapter 17, Florida Administrative Code. The Petitioner requested a formal hearing to consider the matters in dispute, and that hearing was conducted on the dates indicated before and in keeping with Subsection 120.57(1), Florida Statutes. The Petitioner owns land in Monroe County, Florida, identified as Buccaneer Point. This parcel of land is a peninsula which extends from the west side of Key Largo, Florida, and has as its essential features two interior lakes and well-defined mangrove stands to include red mangroves (Rhizophora mangle) and black mangroves (Avicennia germinans). This parcel of land is bordered on the north by Buttonwood Sound and on the south by Florida Bay, navigable water bodies. Respondent's Exhibit No. 1, admitted into evidence, depicts the present condition of the parcel of land, with the exception of proposals involved in the permit review process, which are the subject of this Recommended Order and the companion case of James C. Dougherty v. State of Florida, Department of Environmental Regulation, DOAH Case No. 80-1055. At present, the two lakes do not offer normal access to Buttonwood Sound and Florida Bay, nor do they offer an interior water connection between the two lakes. The southernmost lake does have intermittent water exchange with Florida Bay. Those lakes are identified as North Lake and South Lake. The Petitioner had initially applied for permission to place 75,000 cubic yards of clean limerock fill at the project site and indicated that the fill would be placed landward of the mean high water line. That fill would have covered approximately 17.56 acres in the residential subdivision. The application was made on October 27, 1978. See Petitioner's Exhibit No. 20, admitted into evidence. The Respondent issued an Intent to Deny the permit connected with that request, and that Intent to Deny was issued on April 3, 1980, asserting permit jurisdiction by the Respondent under the provisions of Chapters 253 and 403, Florida Statutes. See Petitioner's Exhibit No. 5, admitted into evidence. The Petitioner modified the permit application effective April 24, 1981. Under the terms of the revised permit application, the Petitioner would place limerock fill over 5.7 acres, including mangroves, constituting approximately 30,000 cubic yards of fill. Additionally, the applicant modified the permit request to include filling the exterior rim of the interior lakes to create a littoral zone and the placement of a berm at that exterior. See Petitioner's Exhibit No. 6, admitted into evidence. The project, as contemplated, allows for a preserve area of mangroves along the northern end of the peninsula and also employs a "pad" concept to preserve the mangrove acreage where fill is to be placed. Those "pads" for houses would be bordered by six- inch dikes to divert upland runoff which might find its way into the interior lakes on the property. The fill material to be placed in those areas, other than the lakes, would be placed above or landward of the line of mean high water, as determined by the mean high water line survey found in Petitioner's Exhibit No. 1, admitted into evidence, dating from December, 1975, and whose methodology was approved on January 15, 1980, for purposes of Chapter 177, Florida Statutes, through the offices of the State of Florida, Department of Natural Resources. This factual determination is also borne out by a review of the Petitioner's Exhibit No. 6, in pari materia with Respondent's Exhibit No. 1 and Petitioner's Exhibit No. 1. As the lakes are now constituted, the placement of the limerock fill at the fringe of the lakes would not be waterward of the line of mean high water; however, when the placement of this fill material is considered in view of the permit request made in Division of Administrative Hearings' Case No. 80-1055, which permit request attempts to open up the lakes by direct water connection to the aforementioned navigable water bodies, then the placement of the fill would be below the line of mean high water. See Petitioner's Exhibit No. 6. Therefore, treatment of the placement of fill for purposes of this case will be considered on a basis that the lakes remain landlocked and the matter of the placement of this fill will be a matter assumed in the Division of Administrative Hearings' Case No. 80-1055, dealing with an attempt to open those lakes by direct water connection to navigable waters of the State. Although the mangrove areas to be filled by the project are landward of the mean high water line, those mangroves are inundated by water at times and considered to be "submerged lands" adjacent to the State water bodies, Buttonwood Sound and Florida Bay. If the mangroves are removed, part of the ecosystem's ability to filter sediments and nutrients contained in stormwater runoff of adjacent upland areas and from tidal flows will be destroyed and will affect water quality considerations for adjacent open bay estuarine or marine systems. The extensive root system of the mangroves and associated vegetation assist in stabilization of estuarine shoreline sediments and attenuation of storm generated tides. Even though some of the mangroves in the proposed area for fill are in a stressed condition, i.e., a condition in which their growth is stunted, if left alone, those mangroves would flourish and provide the same water quality functions as healthy mangroves. A biologist presented by the Petitioner identified the number of mangrove species, the number of mangroves, the diameter of those mangroves and the height of canopies of the mangroves in areas of the project site. These items were summarized through the use of the Holdridge Complexity Index, which measures structural complexity of mangroves within the sites. See Petitioner's Exhibit No. 17, admitted into evidence. In particular, four such station pairs were studied and the pairs were constituted of a station within the basin of the mangrove stand and a station at the fringe of the mangroves. There was a site at each proposed waterway and a site at the northeastern and western points of the peninsula, the area of the proposed mangrove preserve. See Petitioner's Exhibit No. 6, admitted into evidence. This study indicated that fringe mangroves are more developed than the ones in the heart of the basins. This study also revealed that the upland fill would remove primarily black mangroves. The removal of the mangroves and placement of fill would be in furtherance of the creation of twelve to fourteen residential lots, the majority of which would be located on Florida Bay. See Petitioner's Exhibit No. 6. In furtherance of the intention to offer these lots for sale, the Petitioner has sold one of the lots on Florida Bay for $95,000 on or about June 2, 1981. If the proposed utilization of the property in question was not allowed, the Petitioner stands to lose money in his investment in the face of preliminary developmental expenses which, at present, exceed monetary returns from the sale of lots. The area in which the upland fill would be placed is porous limerock, which allows water to seep through and be transported underground to adjoining water bodies, both on site and off site, in addition to the runoff from the upland areas. To address these concerns, the Petitioner has planned for the installation of dikes in the various upland areas which are to be built to prohibit drainage into the remaining mangrove areas and ambient waters. The littoral zones around the edge of the inland lakes would promote marine and wetland vegetation which assists in the function of filtration of sediments and nutrients. On the subject of water quality considerations, the use of the clean limerock fill, which is calcium carbonate, would tend to stabilize seawater at its natural PH level, thereby allowing the specific conductance (measurement of salinity) of the lakes and surrounding ambient waters to remain in a natural state in terms of direct effects of the fill material. On the subject of contamination of water by copper, normally, seawater contains 3 micrograms per liter of copper. In a project such as this one, it is not expected that higher amounts of copper would be found, and the limerock contains only trace amounts of copper, if any. Specific testing done at the project site reveals less than 1 microgram per liter of copper in the North Lake and 4 micrograms per liter in the South Lake. Therefore, the activity is not expected to increase the levels of copper to the extent that measurements exceed 500 micrograms per liter in either the lakes or surrounding waters. In dealing with the substance of zinc, seawater contains as much as 30 micrograms per liter of zinc. Sampling by the Petitioner indicated 2 micrograms per liter in the North Lake and 8 micrograms per liter in the South Lake of that substance. The activity and the development is not expected to increase the levels of zinc to the extent that measurements exceed 1,000 micrograms per liter in either the lakes or surrounding waters. In sampling for lead content, the samples revealed less than 50 micrograms per liter of lead and the placement of limerock fill will not cause the amounts of lead in the lakes and surrounding waters to exceed 50 micrograms per liter. Testing for phenolic compounds at the site revealed that these materials were below established standards of the Respondent, and it is not expected that those standards will be exceeded through activities proposed in this permit process. The testing for oils and greases indicated less than 1 milligram per liter of oils and greases, which is below the State's standard of 15 milligrams per liter, and the activities proposed at the project site are not anticipated to exceed 15 milligrams per liter of oils and greases. Normal PH for coastal waters is 6 to 8.5, and the PH levels of the lakes and ambient waters in the area were in the range of 8, except for measurements done in the winter at the North Lake, where they were shown to be 7.5. The placement of limerock fill will not cause an imbalance in the pH readings. The activity as proposed will not add substances which are created by industrial or agricultural means or cause other discharges, colors or odors, or otherwise promote a nuisance condition in the ambient waters or the lakes. Measurement was made to toxic materials in the way of synthetics, organics or heavy metals. Those tests in the lakes and ambient waters showed heavy metals to be at low levels. There were no sources revealed of synthetics or organics. (The calcium carbonate found in the limerock fill would assist in breaking down lawn pesticides into phosphate.) In summary, the filling, as proposed, is not expected to promote the introduction of toxic substances into the lakes or surrounding waters. The placement of the clean limerock fill in the upland area is not expected to cause problems with turbidity in the lakes or ambient waters, which turbidity would exceed 50 Jackson Units above background. The filling will not affect dissolved, oxygen levels of the surrounding waters. Biochemical oxygen demand, the measurement of demand for oxygen of organic and chemical materials in the water, will not be influenced by the placement of the clean limerock fill related to surrounding waters. The limerock fill is not expected to introduce other oxygen demanding materials into the subject waters, such that dissolved oxygen levels would be lowered by BOD loading. There will be no problem with dissolved solids, in this instance, salts, due to the fact that calcium carbonate fill would not affect the dissolved solids in the ambient waters or in the lakes. Coastal water PH normally measures 6 to 8.5 and PH for open waters in the range of 1. Placement of calcium carbonate fill on the uplands would not cause the PH in the Class II waters in Everglades National Park, which is 300 feet east of Baker Cut Point, to vary above or below normal levels for either coastal or open waters. In addition, there would be no discharge of toxic substances from the calcium carbonate fill into the Class II waters herein described. Tests conducted in the vicinity of homesites utilizing septic tanks, and specifically as sampled in waters adjacent to Buccaneer Point and the subject lakes in a development known as Private Park and Buttonwood Sound , indicated less than one fecal coliform bacterium per 100 milliliters. See Petitioner's Exhibit No. 14, admitted into evidence. Anticipated setbacks for additional septic tanks to be associated with the buildup at the project site would be in keeping with the requirements of Monroe County, Florida, and harmful septic tank leachate is not expected to be a problem.
Findings Of Fact The Petitioner owns property which fronts on Lake Serena in Putnam County, Florida. Petitioner has submitted an application to the Respondent to dredge an area waterward of the ordinary high water line of Lake Serena and to place the dredged material on another area waterward of the ordinary high water line. Approximately 13,000 square feet of surface area presently dominated by wetlands vegetation would be removed by the dredging activity. The Petitioner proposes to cover the area where the fill is deposited with white sand. Petitioner proposes to use the area as a sandy swimming beach. During the summer of 1976 the Petitioner commenced work on his proposed project without receiving a permit from the Respondent. The Respondent, through its agents, stopped the work, and this permit application proceeding ensued. Lake Serena is a relatively pollution-free lake. Most of the littoral or transitional zone Vegetation surrounding the lake has been replaced by sandy swimming beaches. Only approximately forty percent of the shoreline is an aquatic vegetated littoral zone. Aquatic vegetation in the littoral zone surrounding the lake serves an important and natural function in preserving the water quality of the lake, and the natural resources of the lake including fish and wildlife. The aquatic vegetation serves to filter runoff from uplands areas by assimilating nutrients that are in the runoff. Lake Serena is an oligotrophic lake. It is relatively low in nutrients. Aquatic vegetation in the littoral zone serves in part to maintain this condition. If the condition is not maintained the buildup of nutrients would cause an algae bloom, or buildup of algae plants on top of the lake. A buildup of algae on the lake would drastically decrease the oxygen levels of the lake. The algae itself uses oxygen. The algae also kills oxygen producing plants which thrive on the bottom of the lake because the algae cuts off light to these plants. As the algae dies, it sinks and decomposes and uses up more oxygen. An algae bloom of this sort, and the resulting diminishing of oxygen levels in the lake would constitute pollution. Removal of aquatic plants in the lake's littoral zone will also serve to diminish fish populations in the lake. Small fish use such an area as a nursery ground where they can hide from larger predators. The action of aquatic plants on nutrients also serves as an initial step in the food chain for fish. The littoral zone which the Petitioner proposes to dredge and fill is apparently not in its natural state. There was no direct testimony respecting past dredging activity, but there was hearsay testimony to the effect that a previous land owner had dredged what amounts to a sand bar to serve as a boat slip. The entire area is now dominated by aquatic vegetation. It is a viable part of the littoral zone of the lake, and serves the beneficial purposes set out in Paragraph 2 above. There was no evidence offered at the hearing from which it could be determined with any degree of certainty that the Petitioner's proposed project would have any finitely measurable impact upon water quality or wildlife resources in Lake Serena. Removal of all such littoral zones would, however, drastically change the ecology of the lake, and render it polluted. Sixty percent of the lake's shoreline has already been denuded of vegetation. Although it cannot be determined how much more such action the lake will tolerate, it is clear that there is a limit. If the Petitioner's project were granted, other similar projects would also be justified. Inevitably the lake's oligotrophic nature would be destroyed. While it cannot be concluded from the evidence that the Petitioner's project would have any precisely measurable effect upon water quality and upon the natural resources of Lake Serena, it can be determined that the only effect the project could have would be negative. Petitioner has not established that the project would not have an adverse impact upon water quality and natural resources of Lake Serena. Petitioner has apparently concluded that there is no other means for him to have a swimming beach on his property than through the project as he has proposed it. Other witnesses testified, however, that his property includes a site for a swimming beach on land that is not dominated by aquatic vegetation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a final order be entered denying the Petitioner's application for dredge and fill permit. RECOMMENDED this 8th day of April, 1977 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Mussoline, Esquire CLARK & MUSSOLINE 501 St. Johns Avenue Palatka, Florida 32077 Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32301 Mr. Jay Landers, Secretary Department of Environmental Regulation 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32301
The Issue The issue in this case is whether Niagara Bottling Company, LLC (Niagara), is entitled to Consumptive Use Permit (CUP) No. 114010 issued by the St. Johns River Water Management District (District), which authorizes Niagara to withdraw and use 484,000 gallons per day (gpd) of groundwater to produce bottled water at a facility in Lake County.
Findings Of Fact The Parties Groveland is a municipal corporation located in Lake County. Niagara is a water bottling company registered to do business in Florida. Niagara currently owns and operates six water bottling facilities in the United States, including a bottling facility in unincorporated Lake County, northwest of Groveland. Niagara currently operates one bottling line at its Groveland facility, which can be used to bottle either spring water or purified water. The District is a special taxing district created by the Florida Water Resources Act of 1972, with jurisdiction over a sixteen-county area that includes Groveland and the site of Niagara’s proposed water withdrawal. The District administers a permitting program for the consumptive use of water. The Proposed Permit The top geologic layer in the region is the surficial aquifer, which starts at the ground surface and extends down about 50 feet to the Intermediate Confining Unit. Below the Intermediate Confining Unit is the Upper Floridan Aquifer, which starts at a depth of about 150 feet and extends downward to about 550 feet below the ground surface. Below the Upper Floridan Aquifer is the Middle Semi-Confining Unit, which extends down another 450 feet. Below the Middle Semi-Confining Unit is the Lower Florida Aquifer, which extends down to about 2,200 feet below sea level. Nearly all of the groundwater withdrawn for consumptive uses in central Florida comes from the Upper Floridan Aquifer. Groveland’s public water supply wells, for example, withdraw water from the Upper Floridan Aquifer. The proposed CUP authorizes Niagara to withdraw 484,000 gpd from the Upper Floridan Aquifer to produce bottled water. The CUP authorizes the installation of three water supply wells for the facility: a 16-inch production well, a 16-inch backup well, and a 4-inch supply well for domestic uses at Niagara’s facility. Of the 484,000 gpd that Niagara would withdraw, approximately 454,000 gpd would be treated and bottled as “purified water” and approximately 30,000 gpd would be used for cooling some of the equipment used in the bottling process. Under federal regulations, bottled water sold as purified water must meet certain maximum contaminant levels, including a total dissolved solids (TDS) level of less than 10 parts per million. By regulation, purified water is distinct from tap water and from bottled spring water. Niagara would treat the groundwater by filtration and reverse osmosis (RO), primarily to remove TDS. At a customer’s request, minerals can be added to the water to enhance taste. Also before the water is bottled, it disinfected with ozone. The RO process at the Niagara facility is projected to turn 454,000 gpd of groundwater into about 363,000 gpd of purified drinking water for bottling and 91,000 gpd of RO concentrate/wastewater. Reject water from the cooling water system would add some additional wastewater. Niagara has arranged to send its RO concentrate to the Frozen Grove Wastewater Treatment Facility to be blended and used for irrigation at the Mission Inn Golf and Tennis Resort in Howey-in-the-Hills. The City of Minneola has also agreed to take Niagara’s RO concentrate. Niagara and the District requested that the proposed CUP be modified to add the City of Minneola wastewater treatment facility as an alternative recipient for Niagara’s RO concentrate. Niagara and the District propose the following change to Condition 10 of the Technical Staff Report: Withdrawals of groundwater from Well Nos. 1 (GRS Id No 145009) and 2 (GRS Id No 145010 for commercial/industrial type use shall not be initiated until Niagara Bottling LLC and the Frozen Grove WWTF or alternatively Niagara Bottling LLC and the City of Minneola WWTF have obtained all necessary permits to create and use the blend of process waste water (R/O concentrate) and reclaimed water for irrigation, as described in Attachment 4 of the application materials submitted to the District on May 9, 2008 for the Frozen Grove WWTF and the material submitted to the District on March 4, 2009 for the City of Minneola WWTF. The permittee shall provide documentation to the District that the necessary permits have been obtained within 30 days of initiating withdrawals of groundwater for commercial/industrial type use from Well Nos. 1 (GRS Id No 145009) and 2 (GRS Id No 145010). The proposed CUP includes a conservation plan with provisions for monitoring water use, repairing leaks, conducting quality assurance inspections, using totalizing flow meters, and minimizing spillage. Niagara’s proposed CUP contains conditions for environmental monitoring. Niagara would be required to collect water level and rainfall data, and basic vegetation and soils conditions at Lake Arthur. Lake Arthur was selected for monitoring because hydrologic modeling indicated that Niagara’s greatest potential impact to the water table was near Lake Arthur. The monitoring is intended to detect any unexpected adverse environmental impacts caused by Niagara’s proposed withdrawal so that they can be addressed. The proposed permit has an expiration date of December 31, 2013. Stipulations and Withdrawn Claims Before the final hearing, Groveland withdrew a number of allegations made in its Second Amended Petition for Hearing. Groveland stated that its intent was to withdraw the claims that its substantial interests were affected by Niagara’s proposed groundwater withdrawal. Groveland no longer contends that it would be specially injured by the proposed water use. In the parties’ Joint Pre-Hearing Stipulation, Groveland stipulated that Niagara’s proposed water use would not interfere with any legal uses of water. Groveland also stipulated that Niagara’s proposed use would not cause adverse or significant impacts to lake stages or vegetation, would not impact adjacent land uses, would not cause significant saline water intrusion, would not cause or contribute to flood damage, would not harm the quality of the water source, would not cause or contribute to a violation of state water quality standards, would not impact minimum flows and levels established by the District, would not cause the water table or aquifer potentiometric surface to be lowered so that lake stages or vegetation would be adversely and significantly affected, would not affect spring flows or water levels, and would not use water reserved by the District from consumptive use. The record evidence supports the stipulations identified above. Economic and Efficient Utilization The Upper Floridan Aquifer is capable of producing the requested amount of water. Florida Administrative Code Rule 40C-2.301(4)(a) and Section 10.3(a) of the Applicant’s Handbook require that a water use be in such quantity as is necessary for economic and efficient utilization. The District’s determination of economic necessity focuses on preventing “water banking,” which is securing rights to water in excess of an applicant’s actual needs, for possible future use. Niagara’s 484,000 gpd allocation is based on the peak maximum daily output of the processing equipment operating at 74 percent capacity, which is the average capacity that Niagara achieves at its bottling facilities. Groveland contends that the consumer demand for bottled water could be met by other water bottlers and, therefore, there is no need for Niagara’s proposed withdrawal. However, no statute or rule requires Niagara to demonstrate that this particular CUP is the only means to meet the consumer demand for bottled water. The District’s evaluation of need focuses on the applicant’s need for the requested volume of water. In determining whether a requested use of water is necessary, the District does not evaluate the appropriateness of the associated business or activity, but only whether the applicant can reasonably be expected to use the requested volume of water, and do so efficiently based on industry standards. The evidence presented regarding the bottled water market and Niagara’s position in the market was sufficient to demonstrate that the requested volume of water is necessary through the duration of the CUP. The 30,000 gpd that Niagara would use for its cooling system is a reasonable amount of the water for that purpose. The technology to be used at Niagara’s facility is state-of-the- art, using constant online monitoring to reduce reject water. The cooling equipment and its operation have been designed to minimize water use. RO is the industry treatment standard for production of purified bottled water. It is the most cost-efficient treatment method in terms of energy use and water consumption. The proposed RO equipment and its operational parameters are designed to optimize treatment efficiencies. The volume of RO concentrate that would be produced depends on the TDS levels in the groundwater. The estimate of 91,000 gpd of RO concentrate is conservatively high, based on the TDS levels in groundwater samples. The actual volume of RO concentrate produced by Niagara could be smaller. Groveland was critical of Niagara’s wastewater volume, contending that the conversion of 91,000 gpd of groundwater to wastewater is inefficient and contrary to the public interest. The fact that Niagara’s bottling process would produce 91,000 gpd of wastewater does not make it inefficient. Nearly every commercial and industrial water use has a wastewater component. In the context of water bottling processes and water treatment systems, Niagara’s operation is efficient. Groveland asserts that sending Niagara’s RO concentrate to the Mission Inn golf course or the City of Minneola for irrigation purposes is inefficient because a large portion of irrigation water is usually lost to evaporation and does not recharge the aquifer. This assertion fails to account for the fact that every gallon of RO concentrate used for irrigation reduces by one gallon the volume of groundwater that would otherwise be withdrawn for irrigation. Using Niagara’s wastewater for irrigation contributes to the efficiency of Niagara’s proposed use. There is typically a deficit of reclaimed water from public wastewater treatment systems in the summer when the demand for reclaimed water for irrigation and other purposes increases. Niagara’s supply of RO concentrate, however, would remain constant throughout the year. Mission Inn and Minneola would benefit if they were able to use Niagara’s RO concentrate. Niagara’s conservation plan for water use at its facility is equal to or better than the conservation plans incorporated into the CUPs that the District has issued to other beverage bottlers. Niagara’s proposed use was shown to be of such a quantity as is necessary for economic and efficient utilization. Sources of Lower Quality Water Florida Administrative Rule 40C-2.301(4)(f) states that reclaimed water must be used if it is “readily available.” Section 10.3(g) of the Applicant’s Handbook requires that the “lowest acceptable quality water source, including reclaimed water or surface water” must be used for a consumptive use, unless the applicant demonstrates that the use of a lower quality water source is not economically, environmentally, or technologically feasible. The requirement to use a lower water quality source, however, is not applicable when the water is for “direct human consumption” or human food preparation. § 10.3(g), Applicant’s Handbook. Groveland argues that the word “direct” should mean unaltered and, therefore, Niagara’s bottled water is not intended for direct human consumption because the water is treated before it is bottled. The District, however, does not interpret or apply the term “direct human consumption” to mean drinking water directly from the source without treatment. In the case of the water delivered to households and businesses by public water suppliers, which also must be treated before it is delivered, the District regulates the water as being for direct human consumption. The fact that Niagara would filter the groundwater, apply RO treatment, add acid to prevent mineral buildup in the RO equipment, and add minerals for taste if requested by customers, does not disqualify Niagara’s bottled water as being for direct human consumption. Because 454,000 gpd of Niagara’s proposed water withdrawal would be processed for direct human consumption, Niagara did not have to seek to use a source of lower water quality for that volume. The requirement to use available sources of lower quality water would apply to the 30,000 gpd that Niagara intends to use for cooling. There are technical and economic problems associated with using water of lower quality for the cooling process at the Niagara facility because higher TDS levels would damage the cooling equipment. Using water with higher TDS levels would also require greater volumes of water to achieve cooling. Niagara’s cooling system is designed to reject water when the dissolved solids reach a certain high level, and to replace the reject water with fresh water. Operating at higher dissolved solid levels would cause the system to reject water more frequently, so greater volumes of water would be needed for cooling and greater volumes of wastewater would be generated. Using surface water from the St. Johns River, which has TDS levels much higher than in the groundwater, would require twice as much water to operate Niagara’s cooling system. In addition, a 44-mile pipeline would be needed to convey water from the St. Johns River to the Groveland facility, which would involve much higher costs. Seawater has even higher TDS levels and would require desalinization and a different cooling system. Using seawater would require much greater volumes of water for treatment and cooling. Disposal of the brine concentrate generated by the treatment process would create additional costs. The use of seawater would require the construction of a 120-mile pipeline, which would involve large capital and operating costs. Groveland insists that the much higher costs associated with these sources of lower quality water are still economically feasible for Niagara based on Niagara’s projected income from its bottling operations. The District does not determine feasibility based on the balance sheet of the individual permit applicant. The District evaluates relative costs of alternative sources in the context of normal practices and expected benefits. Reliable volumes of reclaimed water to use in Niagara’s cooling system are not readily available to Niagara from domestic wastewater treatment facilities in the area. The spring water sources that Niagara is currently using are not sources of lower quality water. These sources are of equivalent quality to the groundwater that Niagara proposes to withdraw. Groveland contends that Niagara did not investigate the quality of the Lower Floridan Aquifer as a potential source of lower water quality water for Niagara’s proposed use. Groveland believes, but did not prove, that the Lower Floridan has lower quality water. Studies conducted by the U.S. Geological Survey indicate that the water quality of the Lower Floridan Aquifer is about the same or better quality than the quality of the water in the Upper Floridan Aquifer. Water quality data from a Lower Floridan well in the vicinity also indicates that the quality of the water in the Lower Floridan is as good as, or better than, the water quality in the Upper Floridan in this area. Withdrawals from the Lower Floridan create a risk of saline water intrusion into the fresh portion of the Lower Floridan or Upper Floridan. Niagara demonstrated that it is not technically nor economically feasible to use a source of lower quality water for its cooling water. Individual Effect on Wetlands and Lakes To identify the “zone of influence” of Niagara’s proposed withdrawal of water and to assess the individual and cumulative effects of the drawdown associated with the withdrawal, Niagara’s consulting hydrogeologist used a steady- state numerical groundwater model developed by the District, known as the East Central Florida (ECF) groundwater model. It is a steady-state model, which produces a value that represents a long-term average effect. The ECF model predicts the level of drawdown in the surficial aquifer. The model assumes that wetlands and other surface waters are directly connected to the surficial aquifer so that a given drawdown of the surficial aquifer causes the same drawdown of the water levels in wetlands and other surface waters. The ECF model is calibrated to water level data from 1995. A drawdown predicted by the model is a drawdown from 1995 water levels. The ECF model results are graphically depicted as drawdown contours that are overlaid on aerial photography. The District considers the condition and functions of the surface waters in and around the withdrawal site to determine how they might be affected by a predicted drawdown. The dominant surface waters in the area of the proposed withdrawal are sand hill lakes. There are few wetlands. In sand hill lake systems, water table levels fluctuate widely, as much as eight or ten feet. Consequently, these systems are colonized by herbaceous plants that are adapted to widely fluctuating water levels. The wetlands and lakes in the area are not currently showing signs of environmental harm as a result of existing groundwater withdrawals. Niagara’s modeling predicted that the proposed water withdrawal, by itself, would cause a maximum drawdown in the surficial aquifer of 0.1 feet, except for one small area where the predicted drawdown was 0.2 feet. All the expert witnesses were in agreement that Niagara’s drawdown, by itself, is unlikely to cause environmental harm. In fact, the impacts of such a small drawdown on the physical conditions or functions of wetlands or lakes in the area would probably be impossible to detect. Cumulative Effect on Wetlands and Lakes For the analysis of cumulative impacts, the ECF model takes into account all permitted withdrawals for the year 2013, because that is the key year for the regulation of water uses in the Central Florida Coordination Area (CFCA), which includes the site of Niagara’s bottling facility. The CFCA is discussed in greater detail later in this Recommended Order. The ECF model predicated that the cumulative surficial aquifer drawdown within the area of influence of Niagara’s proposed withdrawal would be less than one foot except for one small area where the drawdown is predicted to be 1.1 feet. Niagara submitted an environmental assessment report, the Lotspeich report, with its permit application. The Lotspeich report concluded that no ecological harm would be caused by Niagara’s proposed withdrawal. Subsequently, Niagara’s consulting ecologist, Dr. Shirley Denton, who has extensive experience with the effects of drawdowns on wetlands and other surface waters, reevaluated the potential effects of Niagara’s proposed withdrawal. Dr. Denton visited all of the natural systems in the field. It was her opinion that the cumulative drawdown would not cause unacceptable harm to these natural systems. The District’s environmental expert agreed with Dr. Denton. In the Central Florida sand hill lakes area, a drawdown of this magnitude is not an uncommon cumulative impact from groundwater withdrawals that the District has determined to be acceptable. Groveland presented the testimony of Dr. Jay Exum who opined that the cumulative drawdown in the area of Niagara’s proposed withdrawal would adversely impact wetlands. Dr. Exum’s opinion was based on his prediction that the cumulative drawdown would result in a substantial reduction in the size of the wetlands in the area. However, his opinion about the loss of wetland acreage is not persuasive because of the unconventional methodology2/ that he used and the unreasonable assumptions upon which his opinion was based. Dr. Exum reviewed land cover maps of Lake County, calculated the size and topography of eight wetlands in the area (only one was within Niagara’s zone of influence), came up with an estimated reduction in wetland acreage for these wetlands, and then extrapolated from that number a prediction of the total area of wetlands within Niagara’s area of influence that would be lost as a result of the cumulative drawdown. Dr. Exum did not account for the fact that the wetlands and lakes in the area already reflect most of the cumulative drawdown. The cumulative drawdown predicted by the modeling is not a drawdown below today’s average water levels; it is a drawdown below 1995 levels. In addition, Dr. Exum assumed that a drawdown in the surficial aquifer of .5 foot will cause the future loss of the vegetation at the outer edges of a wetland in an amount that can be calculated simply by determining how much area .5 feet of water would occupy. That assumption would only apply in a hypothetical, unnatural situation where water levels are constant and the wetland vegetation will not survive if the water table drops .5 feet. However, the actual situation is that the water table fluctuates widely in these natural systems and the vegetation is adapted to the fluctuations. The area “formerly” occupied by the .5 feet of water could still be inundated frequently enough to sustain the vegetation. Dr. Exum’s opinion about the environmental effects that would be caused by the cumulative drawdown of the surficial aquifer was given less weight than the opinions offered by Niagara’s and the District’s ecologists because Dr. Exum has little or no prior experience with the effects of drawdowns on natural systems. Dr. Exum’s professional experience is almost entirely with the impacts associated with construction activities in or near wetlands, which would not acquaint him with the unique, long-term responses of natural systems to water table drawdowns caused by groundwater withdrawals. Dr. Denton, who has over 25 years of experience with monitoring wetlands affected by groundwater withdrawals, stated that drawdowns in the surficial aquifer do not usually cause reductions in the size of a wetlands. The more persuasive evidence in the record demonstrates that Niagara’s proposed withdrawal would not cause adverse impacts to wetlands on an individual or a cumulative basis. Niagara provided reasonable assurance that any environmental harm caused by the proposed use has been reduced to an acceptable amount. The five-year duration of the permit is reasonable and appropriate. Public Interest Section 9.3 of the Applicant’s Handbook defines “public interest” as: those rights and claims on behalf of the people in general. In examining whether an application is consistent with the public interest, the District considers whether a particular use of water is going to be beneficial or detrimental to the overall collective well-being of the people or to the water resource in the area, the District and the State. The policy and practice of the District has been to limit its public interest analysis to matters directly related to water resources and the management of those resources. Other matters, such as vehicle traffic generated by the applicant, are not considered by the District. Groveland suggests that Niagara’s proposed use, and perhaps all commercial/industrials uses, are less important and worthy than public water supply uses like its own, and should not be allowed to take water that a public water supplier might need in the future. As discussed in the Conclusions of Law, all reasonable beneficial uses of water are equal under Chapter 373, except in certain contexts which are not applicable here. Commercial and industrial activities that make consumptive uses of water, when conducted in conformance with regulations established to efficiently use and protect the water resources, are generally beneficial to the collective well-being of the people. Groveland also claims that Niagara’s CUP is not in the public interest because a portion of Niagara’s bottled water will be shipped out of Florida. Although Niagara cannot project precisely the amount of bottled water that would end in the hands of consumers residing out-of-state, an estimate of 20 percent was given. For beverage bottlers or any other commercial or industrial water users that incorporate water into their products, the District deems the location of the water use to be where the water is bottled or incorporated into the products. The District does not look to where products are ultimately purchased by a retail consumer. Therefore, the District did not consider the fact that a portion of Niagara’s bottled water would be consumed outside of Florida as a factor in the District’s determination of whether the proposed water use is in the public interest. Niagara’s withdrawal is within the Central Florida Coordination Area (CFCA), an area covering parts of the jurisdiction of three water management districts and which includes the City of Groveland and the site of Niagara’s proposed water withdrawal. The CFCA is a highly productive area for groundwater withdrawals, but the water management districts have determined that it does not have sufficient water to serve water needs above the levels that have been allocated through the year 2013. To protect the water resources of the CFCA, rules were adopted to require public water suppliers and other water users within the CFCA to use “supplemental water supplies” to meet their increases in demand after 2013. Supplemental water supplies are identified in the CFCA rules as reclaimed water, stormwater, surface water, and seawater desalinization. Niagara is not requesting additional water above its 2013 demand and, therefore, is not subject to the restrictions imposed by the various CFCA rules. Nevertheless, the District treated Niagara’s location within the CFCA as a matter affecting the public interest. The District determined that it was inconsistent with the public interest to allow Niagara to withdraw groundwater in the CFCA unless Niagara was required to participate in the development of supplemental water supplies. Therefore, Niagara is required by “Other Condition” 14 in the District’s Technical Staff Report, to identify potential partners for the development of supplemental water supply projects, determine the viability of developing the partnerships, evaluate potential supplemental water supply projects available, and submit a comprehensive written report evaluating whether identified projects are feasible future water supply sources for Niagara. The District imposed a permit expiration date of December 31, 2013, to enable the District and Niagara to reevaluate Niagara’s ability to use a lower quality water source after that date. Groveland does not believe the conditions imposed by the District go far enough and asserts that Niagara’s water withdrawal from the CFCA is still contrary to the public interest. Niagara’s proposed withdrawal is also within a Priority Water Resource Caution Area (PWRCA) designated by the District. The District designates priority water resource caution areas as part of its water supply 20-year planning process. In the PWRCA, the District has determined that there is inadequate groundwater in the Floridan Aquifer to meet all existing and future water needs, without having unacceptable impacts on the water resources. The District stated that the designation of a priority water resource caution area is strictly a planning tool and does not preclude the issuance of permits. CUPs are commonly issued for proposed withdrawals in priority water resource caution areas in the District.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a final order granting Consumptive Use Permit No. 114010 with the conditions specified in the Technical Staff Report and the additional condition proposed by the District and Niagara and set forth in paragraph 12, above. DONE AND ENTERED this 7th day of August, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2009.
The Issue Whether proposed Rule Chapter 62-303, Florida Administrative Code, which describes how the Department of Environmental Protection will exercise its authority under Section 403.067, Florida Statutes, to identify and list those surface waters in the state that are impaired for purposes of the state's total maximum daily load (commonly referred to as "TMDL") program, is an "invalid exercise of delegated legislative authority," within the meaning of Chapter 120, Florida Statutes, for the reasons asserted by Petitioners.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made to supplement the factual stipulations contained in the parties' Prehearing Stipulation: State TMDL Legislation Over the last 30 years, surface water quality management in Florida, like in the rest of the United States, has focused on the control of point sources of pollution (primarily domestic and industrial wastewater) through the issuance, to point source dischargers, of National Pollutant Discharge Elimination System (NPDES) permits, which specify effluent-based standards with which the permit holders must comply. Although "enormously successful in dealing with . . . point sources" of pollution, the NPDES program has not eliminated water quality problems largely because discharges from other sources of pollution (nonpoint sources) have not been as successfully controlled. In the late 1990's, the Department recognized that, to meet Florida's water quality goals, it was going to have to implement a TMDL program for the state. Wanting to make absolutely sure that it had the statutory authority to do so, the Department sought legislation specifically granting it such authority. Jerry Brooks, the deputy director of the Department's Division of Water Resource Management, led the Department's efforts to obtain such legislation. He was assisted by Darryl Joyner, a Department program administrator responsible for overseeing the watershed assessment and groundwater protection sections within the Division of Water Resource Management. Participating in the drafting of the legislation proposed by the Department, along with Mr. Brooks and Mr. Joyner, were representatives of regulated interests. No representatives from the environmental community actively participated in the drafting of the proposed legislation. The Department obtained the TMDL legislation it wanted when the 1999 Florida Legislature enacted Chapter 99-223, Laws of Florida, the effective date of which was May 26, 1999. Section 1 of Chapter 99-223, Laws of Florida, added the following to the definitions set forth in Section 403.031, Florida Statutes, which define "words, phrases or terms" for purposes of "construing [Chapter 403, Florida Statutes], or rules or regulations adopted pursuant [t]hereto": (21) "Total maximum daily load" is defined as the sum of the individual wasteload allocations for point sources[11] and the load allocations for nonpoint sources and natural background. Prior to determining individual wasteload allocations and load allocations, the maximum amount of a pollutant that a water body or water segment can assimilate from all sources without exceeding water quality standards must first be calculated. Section 4 of Chapter 99-223, Laws of Florida, added language to Subsection (1) of Section 403.805, Florida Statutes, providing that the Secretary of the Department, not the Environmental Regulation Commission, "shall have responsibility for final agency action regarding total maximum daily load calculations and allocations developed pursuant to s. 403.067(6)," Florida Statutes. The centerpiece of Chapter 99-223, Laws of Florida, was Section 3 of the enactment, which created Section 403.067, Florida Statutes, dealing with the "[e]stablishment and implementation of total maximum daily loads." Section 403.067, Florida Statutes, was amended in 2000 (by Chapter 2000-130, Laws of Florida) and again in 2001 (by Chapter 2001-74, Laws of Florida). It now reads, in its entirety, as follows: LEGISLATIVE FINDINGS AND INTENT.-- In furtherance of public policy established in s. 403.021, the Legislature declares that the waters of the state are among its most basic resources and that the development of a total maximum daily load program for state waters as required by s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. will promote improvements in water quality throughout the state through the coordinated control of point and nonpoint sources of pollution.[12] The Legislature finds that, while point and nonpoint sources of pollution have been managed through numerous programs, better coordination among these efforts and additional management measures may be needed in order to achieve the restoration of impaired water bodies. The scientifically based total maximum daily load program is necessary to fairly and equitably allocate pollution loads to both nonpoint and point sources. Implementation of the allocation shall include consideration of a cost- effective approach coordinated between contributing point and nonpoint sources of pollution for impaired water bodies or water body segments and may include the opportunity to implement the allocation through nonregulatory and incentive-based programs. The Legislature further declares that the Department of Environmental Protection shall be the lead agency in administering this program and shall coordinate with local governments, water management districts, the Department of Agriculture and Consumer Services, local soil and water conservation districts, environmental groups, regulated interests, other appropriate state agencies, and affected pollution sources in developing and executing the total maximum daily load program. LIST OF SURFACE WATERS OR SEGMENTS.-- In accordance with s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq., the department must submit periodically to the United States Environmental Protection Agency a list of surface waters or segments for which total maximum daily load assessments will be conducted. The assessments shall evaluate the water quality conditions of the listed waters and, if such waters are determined not to meet water quality standards, total maximum daily loads shall be established, subject to the provisions of subsection (4). The department shall establish a priority ranking and schedule for analyzing such waters. The list, priority ranking, and schedule cannot be used in the administration or implementation of any regulatory program. However, this paragraph does not prohibit any agency from employing the data or other information used to establish the list, priority ranking, or schedule in administering any program. The list, priority ranking, and schedule prepared under this subsection shall be made available for public comment, but shall not be subject to challenge under chapter 120. The provisions of this subsection are applicable to all lists prepared by the department and submitted to the United States Environmental Protection Agency pursuant to s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq., including those submitted prior to the effective date of this act, except as provided in subsection (4). If the department proposes to implement total maximum daily load calculations or allocations established prior to the effective date of this act, the department shall adopt those calculations and allocations by rule by the secretary pursuant to ss. 120.536(1) and 120.54 and paragraph (6)(d). ASSESSMENT.-- Based on the priority ranking and schedule for a particular listed water body or water body segment, the department shall conduct a total maximum daily load assessment of the basin in which the water body or water body segment is located using the methodology developed pursuant to paragraph (b). In conducting this assessment, the department shall coordinate with the local water management district, the Department of Agriculture and Consumer Services, other appropriate state agencies, soil and water conservation districts, environmental groups, regulated interests, and other interested parties. The department shall adopt by rule a methodology for determining those waters which are impaired. The rule shall provide for consideration as to whether water quality standards codified in chapter 62- 302, Florida Administrative Code, are being exceeded, based on objective and credible data, studies and reports, including surface water improvement and management plans approved by water management districts under s. 373.456 and pollutant load reduction goals developed according to department rule. Such rule also shall set forth: Water quality sample collection and analysis requirements, accounting for ambient background conditions, seasonal and other natural variations; Approved methodologies; Quality assurance and quality control protocols; Data modeling; and Other appropriate water quality assessment measures. If the department has adopted a rule establishing a numerical criterion for a particular pollutant, a narrative or biological criterion may not be the basis for determining an impairment in connection with that pollutant unless the department identifies specific factors as to why the numerical criterion is not adequate to protect water quality. If water quality non-attainment is based on narrative or biological criteria, the specific factors concerning particular pollutants shall be identified prior to a total maximum daily load being developed for those criteria for that surface water or surface water segment. APPROVED LIST.-- If the department determines, based on the total maximum daily load assessment methodology described in subsection (3), that water quality standards are not being achieved and that technology- based effluent limitations[13] and other pollution control programs under local, state, or federal authority, including Everglades restoration activities pursuant to s. 373.4592 and the National Estuary Program, which are designed to restore such waters for the pollutant of concern are not sufficient to result in attainment of applicable surface water quality standards, it shall confirm that determination by issuing a subsequent, updated list of those water bodies or segments for which total maximum daily loads will be calculated. In association with this updated list, the department shall establish priority rankings and schedules by which water bodies or segments will be subjected to total maximum daily load calculations. If a surface water or water segment is to be listed under this subsection, the department must specify the particular pollutants causing the impairment and the concentration of those pollutants causing the impairment relative to the water quality standard. This updated list shall be approved and amended by order of the department subsequent to completion of an assessment of each water body or water body segment, and submitted to the United States Environmental Protection Agency. Each order shall be subject to challenge under ss. 120.569 and 120.57. REMOVAL FROM LIST.-- At any time throughout the total maximum daily load process, surface waters or segments evaluated or listed under this section shall be removed from the lists described in subsection (2) or subsection (4) upon demonstration that water quality criteria are being attained, based on data equivalent to that required by rule under subsection (3). CALCULATION AND ALLOCATION.-- Calculation of total maximum daily load. Prior to developing a total maximum daily load calculation for each water body or water body segment on the list specified in subsection (4), the department shall coordinate with applicable local governments, water management districts, the Department of Agriculture and Consumer Services, other appropriate state agencies, local soil and water conservation districts, environmental groups, regulated interests, and affected pollution sources to determine the information required, accepted methods of data collection and analysis, and quality control/quality assurance requirements. The analysis may include mathematical water quality modeling using approved procedures and methods. The department shall develop total maximum daily load calculations for each water body or water body segment on the list described in subsection (4) according to the priority ranking and schedule unless the impairment of such waters is due solely to activities other than point and nonpoint sources of pollution. For waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution, no total maximum daily load will be required. A total maximum daily load may be required for those waters that are impaired predominantly due to activities other than point and nonpoint sources. The total maximum daily load calculation shall establish the amount of a pollutant that a water body or water body segment may receive from all sources without exceeding water quality standards, and shall account for seasonal variations and include a margin of safety that takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality. The total maximum daily load may be based on a pollutant load reduction goal developed by a water management district, provided that such pollutant load reduction goal is promulgated by the department in accordance with the procedural and substantive requirements of this subsection. Allocation of total maximum daily loads. The total maximum daily loads shall include establishment of reasonable and equitable allocations of the total maximum daily load among point and nonpoint sources that will alone, or in conjunction with other management and restoration activities, provide for the attainment of water quality standards and the restoration of impaired waters. The allocations may establish the maximum amount of the water pollutant from a given source or category of sources that may be discharged or released into the water body or water body segment in combination with other discharges or releases. Allocations may also be made to individual basins and sources or as a whole to all basins and sources or categories of sources of inflow to the water body or water body segments. Allocations shall be designed to attain water quality standards and shall be based on consideration of the following: Existing treatment levels and management practices; Differing impacts pollutant sources may have on water quality; The availability of treatment technologies, management practices, or other pollutant reduction measures; Environmental, economic, and technological feasibility of achieving the allocation; The cost benefit associated with achieving the allocation; Reasonable timeframes for implementation; Potential applicability of any moderating provisions such as variances, exemptions, and mixing zones; and The extent to which nonattainment of water quality standards is caused by pollution sources outside of Florida, discharges that have ceased, or alterations to water bodies prior to the date of this act. Not later than February 1, 2001, the department shall submit a report to the Governor, the President of the Senate, and the Speaker of the House of Representatives containing recommendations, including draft legislation, for any modifications to the process for allocating total maximum daily loads, including the relationship between allocations and the watershed or basin management planning process. Such recommendations shall be developed by the department in cooperation with a technical advisory committee which includes representatives of affected parties, environmental organizations, water management districts, and other appropriate local, state, and federal government agencies. The technical advisory committee shall also include such members as may be designated by the President of the Senate and the Speaker of the House of Representatives. The total maximum daily load calculations and allocations for each water body or water body segment shall be adopted by rule by the secretary pursuant to ss. 120.536(1), 120.54, and 403.805. The rules adopted pursuant to this paragraph shall not be subject to approval by the Environmental Regulation Commission. As part of the rule development process, the department shall hold at least one public workshop in the vicinity of the water body or water body segment for which the total maximum daily load is being developed. Notice of the public workshop shall be published not less than 5 days nor more than 15 days before the public workshop in a newspaper of general circulation in the county or counties containing the water bodies or water body segments for which the total maximum daily load calculation and allocation are being developed. IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS.-- The department shall be the lead agency in coordinating the implementation of the total maximum daily loads through water quality protection programs. Application of a total maximum daily load by a water management district shall be consistent with this section and shall not require the issuance of an order or a separate action pursuant to s. 120.536(1) or s. 120.54 for adoption of the calculation and allocation previously established by the department. Such programs may include, but are not limited to: Permitting and other existing regulatory programs; Nonregulatory and incentive-based programs, including best management practices, cost sharing, waste minimization, pollution prevention, and public education; Other water quality management and restoration activities, for example surface water improvement and management plans approved by water management districts under s. 373.456 or watershed or basin management plans developed pursuant to this subsection; Pollutant trading or other equitable economically based agreements; Public works including capital facilities; or Land acquisition. In developing and implementing the total maximum daily load for a water body, the department, or the department in conjunction with a water management district, may develop a watershed or basin management plan that addresses some or all of the watersheds and basins tributary to the water body. These plans will serve to fully integrate the management strategies available to the state for the purpose of implementing the total maximum daily loads and achieving water quality restoration. The watershed or basin management planning process is intended to involve the broadest possible range of interested parties, with the objective of encouraging the greatest amount of cooperation and consensus possible. The department or water management district shall hold at least one public meeting in the vicinity of the watershed or basin to discuss and receive comments during the planning process and shall otherwise encourage public participation to the greatest practical extent. Notice of the public meeting shall be published in a newspaper of general circulation in each county in which the watershed or basin lies not less than 5 days nor more than 15 days before the public meeting. A watershed or basin management plan shall not supplant or otherwise alter any assessment made under s. 403.086(3) and (4), or any calculation or allocation made under s. 403.086(6). The department, in cooperation with the water management districts and other interested parties, as appropriate, may develop suitable interim measures, best management practices, or other measures necessary to achieve the level of pollution reduction established by the department for nonagricultural nonpoint pollutant sources in allocations developed pursuant to paragraph (6)(b). These practices and measures may be adopted by rule by the department and the water management districts pursuant to ss. 120.536(1) and 120.54, and may be implemented by those parties responsible for nonagricultural nonpoint pollutant sources and the department and the water management districts shall assist with implementation. Where interim measures, best management practices, or other measures are adopted by rule, the effectiveness of such practices in achieving the levels of pollution reduction established in allocations developed by the department pursuant to paragraph (6)(b) shall be verified by the department. Implementation, in accordance with applicable rules, of practices that have been verified by the department to be effective at representative sites shall provide a presumption of compliance with state water quality standards and release from the provisions of s.376.307(5) for those pollutants addressed by the practices, and the department is not authorized to institute proceedings against the owner of the source of pollution to recover costs or damages associated with the contamination of surface or ground water caused by those pollutants. Such rules shall also incorporate provisions for a notice of intent to implement the practices and a system to assure the implementation of the practices, including recordkeeping requirements. Where water quality problems are detected despite the appropriate implementation, operation, and maintenance of best management practices and other measures according to rules adopted under this paragraph, the department or the water management districts shall institute a reevaluation of the best management practice or other measures. 1. The Department of Agriculture and Consumer Services may develop and adopt by rule pursuant to ss. 120.536(1) and 120.54 suitable interim measures, best management practices, or other measures necessary to achieve the level of pollution reduction established by the department for agricultural pollutant sources in allocations developed pursuant to paragraph (6)(b). These practices and measures may be implemented by those parties responsible for agricultural pollutant sources and the department, the water management districts, and the Department of Agriculture and Consumer Services shall assist with implementation. Where interim measures, best management practices, or other measures are adopted by rule, the effectiveness of such practices in achieving the levels of pollution reduction established in allocations developed by the department pursuant to paragraph (6)(b) shall be verified by the department. Implementation, in accordance with applicable rules, of practices that have been verified by the department to be effective at representative sites shall provide a presumption of compliance with state water quality standards and release from the provisions of s.376.307(5) for those pollutants addressed by the practices, and the department is not authorized to institute proceedings against the owner of the source of pollution to recover costs or damages associated with the contamination of surface or ground water caused by those pollutants. In the process of developing and adopting rules for interim measures, best management practices, or other measures, the Department of Agriculture and Consumer Services shall consult with the department, the Department of Health, the water management districts, representatives from affected farming groups, and environmental group representatives. Such rules shall also incorporate provisions for a notice of intent to implement the practices and a system to assure the implementation of the practices, including recordkeeping requirements. Where water quality problems are detected despite the appropriate implementation, operation, and maintenance of best management practices and other measures according to rules adopted under this paragraph, the Department of Agriculture and Consumer Services shall institute a reevaluation of the best management practice or other measure. 2. Individual agricultural records relating to processes or methods of production, or relating to costs of production, profits, or other financial information which are otherwise not public records, which are reported to the Department of Agriculture and Consumer Services pursuant to this paragraph or pursuant to any rule adopted pursuant to this paragraph shall be confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. Upon request of the department or any water management district, the Department of Agriculture and Consumer Services shall make such individual agricultural records available to that agency, provided that the confidentiality specified by this subparagraph for such records is maintained. This subparagraph is subject to the Open Government Sunset Review Act of 1995 in accordance with s. 119.15, and shall stand repealed on October 2, 2006, unless reviewed and saved from repeal through reenactment by the Legislature. The provisions of paragraphs (c) and (d) shall not preclude the department or water management district from requiring compliance with water quality standards or with current best management practice requirements set forth in any applicable regulatory program authorized by law for the purpose of protecting water quality. Additionally, paragraphs (c) and (d) are applicable only to the extent that they do not conflict with any rules promulgated by the department that are necessary to maintain a federally delegated or approved program. RULES.-- The department is authorized to adopt rules pursuant to ss. 120.536(1) and 120.54 for: Delisting water bodies or water body segments from the list developed under subsection (4) pursuant to the guidance under subsection (5); Administration of funds to implement the total maximum daily load program; Procedures for pollutant trading among the pollutant sources to a water body or water body segment, including a mechanism for the issuance and tracking of pollutant credits. Such procedures may be implemented through permits or other authorizations and must be legally binding. No rule implementing a pollutant trading program shall become effective prior to review and ratification by the Legislature; and The total maximum daily load calculation in accordance with paragraph (6)(a) immediately upon the effective date of this act, for those eight water segments within Lake Okeechobee proper as submitted to the United States Environmental Protection Agency pursuant to subsection (2). APPLICATION.-- The provisions of this section are intended to supplement existing law, and nothing in this section shall be construed as altering any applicable state water quality standards or as restricting the authority otherwise granted to the department or a water management district under this chapter or chapter 373. The exclusive means of state implementation of s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. shall be in accordance with the identification, assessment, calculation and allocation, and implementation provisions of this section. CONSTRUCTION.-- Nothing in this section shall be construed as limiting the applicability or consideration of any mixing zone, variance, exemption, site specific alternative criteria, or other moderating provision. IMPLEMENTATION OF ADDITIONAL PROGRAMS.-- The department shall not implement, without prior legislative approval, any additional regulatory authority pursuant to s. 303(d) of the Clean Water Act or 40 C.F.R. part 130, if such implementation would result in water quality discharge regulation of activities not currently subject to regulation. In order to provide adequate due process while ensuring timely development of total maximum daily loads, proposed rules and orders authorized by this act shall be ineffective pending resolution of a s. 120.54(3), s. 120.56, s. 120.569, or s. 120.57 administrative proceeding. However, the department may go forward prior to resolution of such administrative proceedings with subsequent agency actions authorized by subsections (2)-(6), provided that the department can support and substantiate those actions using the underlying bases for the rules or orders without the benefit of any legal presumption favoring, or in deference to, the challenged rules or orders. Key Provisions of Law Referenced in Section 403.067, Florida Statutes Section 403.021, Florida Statutes Section 403.021, Florida Statutes, which is referenced in Subsection (1) of Section 403.067, Florida Statutes, provides, in pertinent part, as follows: The pollution of the air and waters of this state constitutes a menace to public health and welfare; creates public nuisances; is harmful to wildlife and fish and other aquatic life; and impairs domestic, agricultural, industrial, recreational, and other beneficial uses of air and water. It is declared to be the public policy of this state to conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife and fish and other aquatic life, and for domestic, agricultural, industrial, recreational, and other beneficial uses and to provide that no wastes be discharged into any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such water. * * * It is hereby declared that the prevention, abatement, and control of the pollution of the air and waters of this state are affected with a public interest, and the provisions of this act are enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state. The Legislature finds and declares that control, regulation, and abatement of the activities which are causing or may cause pollution of the air or water resources in the state and which are or may be detrimental to human, animal, aquatic, or plant life, or to property, or unreasonably interfere with the comfortable enjoyment of life or property be increased to ensure conservation of natural resources; to ensure a continued safe environment; to ensure purity of air and water; to ensure domestic water supplies; to ensure protection and preservation of the public health, safety, welfare, and economic well-being; to ensure and provide for recreational and wildlife needs as the population increases and the economy expands; and to ensure a continuing growth of the economy and industrial development. The Legislature further finds and declares that: Compliance with this law will require capital outlays of hundreds of millions of dollars for the installation of machinery, equipment, and facilities for the treatment of industrial wastes which are not productive assets and increased operating expenses to owners without any financial return and should be separately classified for assessment purposes. Industry should be encouraged to install new machinery, equipment, and facilities as technology in environmental matters advances, thereby improving the quality of the air and waters of the state and benefiting the citizens of the state without pecuniary benefit to the owners of industries; and the Legislature should prescribe methods whereby just valuation may be secured to such owners and exemptions from certain excise taxes should be offered with respect to such installations. Facilities as herein defined should be classified separately from other real and personal property of any manufacturing or processing plant or installation, as such facilities contribute only to general welfare and health and are assets producing no profit return to owners. In existing manufacturing or processing plants it is more difficult to obtain satisfactory results in treating industrial wastes than in new plants being now planned or constructed and that with respect to existing plants in many instances it will be necessary to demolish and remove substantial portions thereof and replace the same with new and more modern equipment in order to more effectively treat, eliminate, or reduce the objectionable characteristics of any industrial wastes and that such replacements should be classified and assessed differently from replacements made in the ordinary course of business. * * * It is the policy of the state to ensure that the existing and potential drinking water resources of the state remain free from harmful quantities of contaminants. The department, as the state water quality protection agency, shall compile, correlate, and disseminate available information on any contaminant which endangers or may endanger existing or potential drinking water resources. It shall also coordinate its regulatory program with the regulatory programs of other agencies to assure adequate protection of the drinking water resources of the state. It is the intent of the Legislature that water quality standards be reasonably established and applied to take into account the variability occurring in nature. The department shall recognize the statistical variability inherent in sampling and testing procedures that are used to express water quality standards. The department shall also recognize that some deviations from water quality standards occur as the result of natural background conditions. The department shall not consider deviations from water quality standards to be violations when the discharger can demonstrate that the deviations would occur in the absence of any human-induced discharges or alterations to the water body. Rule Chapter 62-302, Florida Administrative Code Rule Chapter 62-302, Florida Administrative Code, which is referenced in Subsection (3)(b) of Section 447.067, Florida Statutes, contains Florida's "[s]urface water quality standards." Rule 62-302.300, Florida Administrative Code, is entitled, "Findings, Intent, and Antidegradation Policy for Surface Water Quality," and provides as follows: Article II, Section 7 of the Florida Constitution requires abatement of water pollution and conservation and protection of Florida's natural resources and scenic beauty. Congress, in Section 101(a)(2) of the Federal Water Pollution Control Act, as amended,[14] declares that achievement by July 1, 1983, of water quality sufficient for the protection and propagation[15] of fish, shellfish, and wildlife, as well as for recreation in and on the water, is an interim goal to be sought whenever attainable. Congress further states, in Section 101(a)(3), that it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited. The present and future most beneficial uses of all waters of the State have been designated by the Department by means of the Classification system set forth in this Chapter pursuant to Subsection 403.061(10), F.S.[16] Water quality standards[17] are established by the Department to protect these designated uses.[18] Because activities outside the State sometimes cause pollution[19] of Florida's waters, the Department will make every reasonable effort to have such pollution abated. Water quality standards apply equally to and shall be uniformly enforced in both the public and private sector. Public interest shall not be construed to mean only those activities conducted solely to provide facilities or benefits to the general public. Private activities conducted for private purposes may also be in the public interest. The Commission, recognizing the complexity of water quality management and the necessity to temper regulatory actions with the technological progress and the social and economic well-being of people, urges, however, that there be no compromise where discharges of pollutants constitute a valid hazard to human health. The Commission requests that the Secretary seek and use the best environmental information available when making decisions on the effects of chronically and acutely toxic substances and carcinogenic, mutagenic, and teratogenic substances. Additionally, the Secretary is requested to seek and encourage innovative research and developments in waste treatment alternatives that might better preserve environmental quality or at the same time reduce the energy and dollar costs of operation. The criteria set forth in this Chapter are minimum levels which are necessary to protect the designated uses of a water body. It is the intent of this Commission that permit applicants should not be penalized due to a low detection limit associated with any specific criteria. (10)(a) The Department's rules that were adopted on March 1, 1979 regarding water quality standards are designed to protect the public health or welfare and to enhance the quality of waters of the State. They have been established taking into consideration the use and value of waters of the State for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation. Under the approach taken in the formulation of the rules adopted in this proceeding: The Department's rules that were adopted on March 1, 1979 regarding water quality standards are based upon the best scientific knowledge related to the protection of the various designated uses of waters of the State; and The mixing zone,[20] zone of discharge, site specific alternative criteria, exemption, and equitable allocation provisions are designed to provide an opportunity for the future consideration of factors relating to localized situations which could not adequately be addressed in this proceeding, including economic and social consequences, attainability, irretrievable conditions, natural background,[21] and detectability. This is an even-handed and balanced approach to attainment of water quality objectives. The Commission has specifically recognized that the social, economic and environmental costs may, under certain special circumstances, outweigh the social, economic and environmental benefits if the numerical criteria are enforced statewide. It is for that reason that the Commission has provided for mixing zones, zones of discharge, site specific alternative criteria, exemptions and other provisions in Chapters 62-302, 62-4, and 62-6, F.A.C. Furthermore, the continued availability of the moderating provisions is a vital factor providing a basis for the Commission's determination that water quality standards applicable to water classes in the rule are attainable taking into consideration environmental, technological, social, economic and institutional factors. The companion provisions of Chapters 62-4 and 62-6, F.A.C., approved simultaneously with these Water Quality Standards are incorporated herein by reference as a substantive part of the State's comprehensive program for the control, abatement and prevention of water pollution. Without the moderating provisions described in (b)2. above, the Commission would not have adopted the revisions described in (b)1. above nor determined that they are attainable as generally applicable water quality standards. Section 403.021, Florida Statutes, declares that the public policy of the State is to conserve the waters of the State to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife, fish and other aquatic life, and for domestic, agricultural, industrial, recreational, and other beneficial uses. It also prohibits the discharge of wastes into Florida waters without treatment necessary to protect those beneficial uses of the waters. The Department shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources, and all cost- effective and reasonable best management practices for nonpoint source control. For the purposes of this rule, highest statutory and regulatory requirements for new and existing point sources are those which can be achieved through imposition of effluent limits required under Sections 301(b) and 306 of the Federal Clean Water Act (as amended in 1987) and Chapter 403, F.S. For the purposes of this rule, cost-effective and reasonable best management practices for nonpoint source control are those nonpoint source controls authorized under Chapters 373 and 403, F.S., and Department rules. The Department finds that excessive nutrients (total nitrogen and total phosphorus) constitute one of the most severe water quality problems facing the State. It shall be the Department's policy to limit the introduction of man-induced nutrients into waters of the State. Particular consideration shall be given to the protection from further nutrient enrichment of waters which are presently high in nutrient concentrations or sensitive to further nutrient concentrations and sensitive to further nutrient loadings. Also, particular consideration shall be given to the protection from nutrient enrichment of those waters presently containing very low nutrient concentrations: less than 0.3 milligrams per liter total nitrogen or less than 0.04 milligrams per liter total phosphorus. Existing uses and the level of water quality necessary to protect the existing uses shall be fully maintained and protected. Such uses may be different or more extensive than the designated use. Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. Waters having water quality below the criteria established for them shall be protected and enhanced. However, the Department shall not strive to abate natural conditions. If the Department finds that a new or existing discharge will reduce the quality of the receiving waters below the classification established for them or violate any Department rule or standard, it shall refuse to permit the discharge. If the Department finds that a proposed new discharge or expansion of an existing discharge will not reduce the quality of the receiving waters below the classification established for them, it shall permit the discharge if such degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest, and if all other Department requirements are met. Projects permitted under Part IV of Chapter 373, F.S., shall be considered in compliance with this subsection if those projects comply with the requirements of subsection 373.414(1), F.S.; also projects permitted under the grandfather provisions of Sections 373.414(11) through (16), F.S., or permitted under Section 373.4145, F.S., shall be considered in compliance with this subsection if those projects comply with the requirements of Rule 62-312.080(2), F.A.C. (18)(a) Except as provided in subparagraphs (b) and (c) of this paragraph, an applicant for either a general permit or renewal of an existing permit for which no expansion of the discharge is proposed is not required to show that any degradation from the discharge is necessary or desirable under federal standards and under circumstances which are clearly in the public interest. If the Department determines that the applicant has caused degradation of water quality over and above that allowed through previous permits issued to the applicant, then the applicant shall demonstrate that this lowering of water quality is necessary or desirable under federal standards and under circumstances which are clearly in the public interest. These circumstances are limited to cases where it has been demonstrated that degradation of water quality is occurring due to the discharge. If the new or expanded discharge was initially permitted by the Department on or after October 4, 1989, and the Department determines that an antidegradation analysis was not conducted, then the applicant seeking renewal of the existing permit shall demonstrate that degradation from the discharge is necessary or desirable under federal standards and under circumstances which are clearly in the public interest. Rule 62-302.400, Florida Administrative Code, classifies all surface waters of the state "according to designated uses." The rule provides for five classifications: Class I ("Potable Water Supplies"); Class II ("Shellfish Propagation or Harvesting"); Class III ("Recreation, Propagation of a Healthy, Well-Balanced Population of Fish and Wildlife": Fresh and Marine); Class IV ("Agricultural Water Supplies"); and Class V ("Navigation, Utility and Industrial Use").22 See Rule 62-302.400(1), Florida Administrative Code. These "[w]ater quality classifications are arranged in order of degree of protection required, with Class I water having generally the most stringent water quality criteria23 and Class V the least. However, Class I, II, and III surface waters share water quality criteria established to protect recreation and the propagation and maintenance of a healthy well-balanced population of fish and wildlife." Rule 62-302.400(4), Florida Administrative Code. Waters designated as "Outstanding Florida Waters and Outstanding National Resource Waters" are given "special protection." See Rule 62-302.700(1) and (7), Florida Administrative Code ("It shall be the Department policy to afford the highest protection to Outstanding Florida Waters and Outstanding National Resource Waters. No degradation of water quality, other than that allowed in Rule 62-4.242(2) and (3), F.A.C., is to be permitted in Outstanding Florida Waters and Outstanding National Resource Waters, respectively, notwithstanding any other Department rules that allow water quality lowering. . . . The policy of this section shall be implemented through the permitting process pursuant to Section 62-4.242, F.A.C.").24 According to Subsection (5) of Rule 62-302.400, Florida Administrative Code, Criteria applicable to a classification are designed to maintain the minimum conditions necessary to assure the suitability of water for the designated use of the classification. In addition, applicable criteria are generally adequate to maintain minimum conditions required for the designated uses of less stringently regulated classifications. Therefore, unless clearly inconsistent with the criteria applicable, the designated uses of less stringently regulated classifications shall be deemed to be included within the designated uses of more stringently regulated classifications. "The specific water quality criteria corresponding to each surface water classification are listed in Rules 62-302.500 and 62-302.530," Florida Administrative Code. Rule 62- 302.400(3), Florida Administrative Code. Subsection (1) of Rule 62-302.500, Florida Administrative Code, sets forth what are known as the "free froms." It provides as follows: Minimum Criteria. All surface waters of the State shall at all places and at all times be free from: Domestic, industrial, agricultural, or other man-induced non-thermal components of discharges which, alone or in combination with other substances or in combination with other components of discharges (whether thermal or non-thermal): Settle to form putrescent deposits or otherwise create a nuisance; or Float as debris, scum, oil, or other matter in such amounts as to form nuisances; or Produce color, odor, taste, turbidity, or other conditions in such degree as to create a nuisance; or Are acutely toxic; or Are present in concentrations which are carcinogenic, mutagenic, or teratogenic to human beings or to significant, locally occurring, wildlife or aquatic species, unless specific standards are established for such components in Rules 62-302.500(2) or 62-302.530; or Pose a serious danger to the public health, safety, or welfare. Thermal components of discharges which, alone, or in combination with other discharges or components of discharges (whether thermal or non-thermal): Produce conditions so as to create a nuisance; or Do not comply with applicable provisions of Rule 62-302.500(3), F.A.C. Silver in concentrations above 2.3 micrograms/liter in predominantly marine waters. Rule 62-302.530, Florida Administrative Code, has a table that contains both numeric and narrative surface water quality criteria to be applied except within zones of mixing. The left-hand column of the Table is a list of constituents [or parameters] for which a surface water criterion exists. The headings for the water quality classifications are found at the top of the Table. Applicable criteria lie within the Table. The individual criteria should be read in conjunction with other provisions in water quality standards, including Rules 62- 302.500 and 62-302.510, F.A.C. The criteria contained in Rules 62-302.500 or 62-302.510 also apply to all waters unless alternative or more stringent criteria are specified in Rule 62-302.530, F.A.C. Unless otherwise stated, all criteria express the maximum not to be exceeded at any time. In some cases, there are separate or additional limits, such as annual average criteria, which apply independently of the maximum not to be exceeded at any time. The following are the specific parameters listed in the table: Alkalinity; Aluminum; Ammonia (un-ionized); Antimony; Arsenic (total and trivalent); Bacteriological Quality (Fecal Coliform Bacteria); Bacteriological Quality (Total Coliform Bacteria); Barium; Benzene; Beryllium; Biological Integrity; BOD (Biochemical Oxygen Demand); Bromine (free molecular); Cadmium; Carbon Tetrachloride; Chlorides; Chlorine (total residual); Chromium (trivalent and hexavalent); Chronic Toxicity; Color; Conductance (specific); Copper; Cyanide; Detergents; 1,1- Dichloroethylene (1,1-di-chloroethene); Dichloromethane (methylene chloride); 2,4-Dinitrotoluene; Dissolved Oxygen; Dissolved Solids; Fluorides; Halomethanes; Hexachlorobutadiene; Iron; Lead; Manganese; Mercury; Nickel; Nitrate; Nuisance Species;25 Nutrients;26 Odor; Oils and Greases; Pesticides and Herbicides (2,4,5-TP; 2-4-D; Aldrin; Betahexachlorocyclohexane; Chlordane; DDT; Demeton; Dieldrin; Endosulfan; Endrin: Guthion; Heptachlor; Lindane; Malathion; Methoxychlor; Mirex; Parathion; Toxaphene); pH; Phenolic Compounds; Phosphorous (Elemental); Polycyclic Aromatic Hydrocarbons; Radioactive Substances; Selenium; Silver; 1,1,2,2-Tetrachloroethane; Tetrachloroethylene; Thallium; Total Dissolved Gases; Transparency; Trichloroeylene (trichloroethene); Turbidity; and Zinc. Rule 62-302.800, Florida Administrative Code, provides for the establishment of "[s]ite [s]pecific [a]lternative [c]riteria" where a water body, or portion thereof, does "not meet a particular ambient water quality criterion specified for its classification, due to natural background conditions or man- induced conditions which cannot be controlled or abated."27 Section 303(d) of the Clean Water Act Section 303(d) of the Clean Water Act (33 U.S.C. Section 1313(d)), which is referenced in Subsections (1), (2), (9), and (11) of Section 447.067, Florida Statutes, provides as follows: Identification of areas with insufficient controls; maximum daily load; certain effluent limitations revision (1)(A) Each State shall identify those waters within its boundaries for which the effluent limitations required by section 1311(b)(1)(A) and section 1311(b)(1)(B) of this title are not stringent enough to implement any water quality standard applicable to such waters. The State shall establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters. Each State shall identify those waters or parts thereof within its boundaries for which controls on thermal discharges under section 1311 of this title are not stringent enough to assure protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife. Each State shall establish for the waters identified in paragraph (1)(A) of this subsection, and in accordance with the priority ranking, the total maximum daily load, for those pollutants which the Administrator identifies under section 1314(a)(2) of this title as suitable for such calculation. Such load shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality. Each State shall submit to the Administrator from time to time, with the first such submission not later than one hundred and eighty days after the date of publication of the first identification of pollutants under section 1314(a)(2)(D) of this title, for his approval the waters identified and the loads established under paragraphs (1)(A), (1)(B), (1)(C), and (1)(D) of this subsection. The Administrator shall either approve or disapprove such identification and load not later than thirty days after the date of submission. If the Administrator approves such identification and load, such State shall incorporate them into its current plan under subsection (e) of this section. If the Administrator disapproves such identification and load, he shall not later than thirty days after the date of such disapproval identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters and upon such identification and establishment the State shall incorporate them into its current plan under subsection (e) of this section. For the specific purpose of developing information, each State shall identify all waters within its boundaries which it has not identified under paragraph (1)(A) and (1)(B) of this subsection and estimate for such waters the total maximum daily load with seasonal variations and margins of safety, for those pollutants which the Administrator identifies under section 1314(a)(2) of this title as suitable for such calculation and for thermal discharges, at a level that would assure protection and propagation of a balanced indigenous population of fish, shellfish and wildlife. Limitations on revision of certain effluent limitations Standard not attained For waters identified under paragraph (1)(A) where the applicable water quality standard has not yet been attained, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section may be revised only if (i) the cumulative effect of all such revised effluent limitations based on such total maximum daily load or waste load allocation will assure the attainment of such water quality standard, or (ii) the designated use which is not being attained is removed in accordance with regulations established under this section. Standard attained For waters identified under paragraph (1)(A) where the quality of such waters equals or exceeds levels necessary to protect the designated use for such waters or otherwise required by applicable water quality standards, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section, or any water quality standard established under this section, or any other permitting standard may be revised only if such revision is subject to and consistent with the antidegradation policy established under this section. Development of Proposed Rule Chapter 62-303, Florida Administrative Code The rule development process that culminated in the adoption of proposed Rule Chapter 62-303, Florida Administrative Code, began shortly after the enactment of Chapter 99-223, Laws of Florida, when the Department decided, consistent with its routine practice in complex rulemaking cases, to form a technical advisory committee (TAC) to assist the Department in developing an "identification of impaired surface waters" rule by rendering advice to the Department concerning technical and scientific matters.28 The Department solicited nominations for TAC membership from stakeholder groups, but ultimately rejected the nominations it received and instead selected individuals it believed were best qualified to contribute based upon their expertise (in areas including water quality monitoring, water quality chemistry, water quality modeling, estuarine ecology, wetland ecology, analytical chemistry, statistics, bioassessment procedures, limnology, coastal ecology, fish biology, and hydrology). The first TAC meeting was held August 12, 1999. There were 12 subsequent TAC meetings, the last two of which were held on August 4, 2000, and August 28, 2000. The TAC meetings were held in various locations throughout the state (Pensacola, Tallahassee, Jacksonville, Gainesville, Orlando, Tampa, St. Petersburg, and West Palm Beach) and were open to public, with members of the public able to make comments. All 13 TAC meetings were noticed in the Florida Administrative Weekly. The TAC meetings were chaired by Mr. Joyner, who was the Department employee primarily responsible for drafting an "identification of impaired surface waters" rule. Mr. Joyner emphasized to the TAC members that their role was simply to give advice and make recommendations to the Department and that their advice and recommendations might not be followed. As it turned out, there were several instances where the Department rejected a TAC recommendation. In addition to seeking the advice of experts on technical and scientific matters, the Department wanted to hear from stakeholders regarding policy issues. Towards that end, it took steps to establish a Policy Advisory Committee (PAC). An organizational meeting of the PAC was held on March 24, 2000, in Tallahassee, the day after the seventh TAC meeting (which was also held in Tallahassee). After being told about the government in the sunshine and public records laws with which they would have to comply as PAC members, "no one wanted to be on the PAC." The consensus of those present was to "just have public meetings [to elicit stakeholder input] and not have a formal PAC." The Department acted accordingly. Following this March 24, 2000, meeting, the Department abandoned its efforts to form a PAC and instead held four public meetings to obtain input from the public regarding policy questions involved in crafting an "identification of impaired surface waters" rule. The last two of these public meetings were combined with the last two TAC meetings (held on August 4, 2000, and August 28, 2000). Each of the five "policy" public meetings held by the Department (including the March 24, 2000, PAC organizational meeting) were noticed in the Florida Administrative Weekly. The Department also held two rule development workshops (one on September 7, 2000, and the other on December 7, 2000), both of which were also noticed in the Florida Administrative Weekly. Between the time these two rule development workshops were held, Mr. Joyner met with representatives of regulated interests and the environmental community to discuss their thoughts regarding what should be included in an "identification of impaired surface waters" rule. Throughout the rule development process, the Department also received and considered written comments from interested persons. Information about the rule development process was posted on the Department's web site for the public to read. The Department e-mailed approximately 350 persons (whose names were on a list of interested persons compiled by the Department) to notify them in advance of any meetings and workshops on proposed Rule Chapter 62-303, Florida Administrative Code. Proposed Rule Chapter 62-303, Florida Administrative Code, underwent numerous revisions during the rule development process. Whenever a revised version of the proposed rule chapter was prepared, the Department sent a copy of it, via e-mail, to the persons on the Department's 350 "interested persons" e-mail list. Changes to proposed Rule Chapter 62-303, Florida Administrative Code, were made not only in response to comments made by members of the TAC and stakeholders, but also in response to comments made by staff of the Region IV office of the United States Environmental Protection Agency (EPA), with whom Department staff had extensive discussions regarding the proposed rule chapter. The Environmental Regulation Commission (ERC) "exercise[s] the standard-setting authority of the [D]epartment."29 In March of 2001, approximately 19 months after the first TAC meeting, the Department was ready to present its most recent version of proposed Rule Chapter 62-303, Florida Administrative Code, to the ERC for adoption. Accordingly, it published a Notice of Proposed Rulemaking in the March 23, 2001 (Volume 27, Number 12) edition of the Florida Administrative Weekly announcing that a hearing on the proposed rule chapter would be held before the ERC on April 26, 2001. The Notice contained the complete text of the proposed rule chapter, as well as the following statement of “[p]urpose, effect, and summary”: The purpose of the proposed new rule is to establish a methodology to identify impaired waters that will be included on the State's verified list of impaired waters, for which the Department will calculate Total Maximum Daily Loads, pursuant to subsection 403.067(4), Florida Statutes (F.S.), and which will be submitted to the United States Environmental Protection Agency pursuant to subparagraphs 303(d)(1)(A) and 303(d)(1)(C) of the Clean Water Act. As directed by 403.067, F.S., the development of the State's 303(d) list will be a two-step process; waters will first be identified as potentially impaired and then any impairment will be verified before listing the water. The rule implements this statutory direction by providing a methodology to identify surface waters of the state that will be included on a "planning list" of waters. Pursuant to subsection 403.067(2) and (3), F.S., the Department will evaluate the data used to place these waters on the planning list, verify that the data meet quality assurance and data sufficiency requirements of the "verified list," and collect additional data, as needed, to complete the assessment. The rule also provides information about the listing cycle, the format of the verified list, and delisting procedures. At the ERC's regularly scheduled March 29, 2001, meeting, Mr. Joyner formally briefed the ERC on the status of the rule development process (as he had previously done at ERC's regularly scheduled meetings on June 29, 2000, August 24, 2000, December 5, 2000, and January 25, 2001). At the March 29, 2001, meeting, Mr. Joyner went through the proposed rule chapter with the ERC "paragraph by paragraph." As noted above, prior to the scheduled April 26, 2001, ERC hearing, petitions challenging the proposed rule chapter (as published in the March 23, 2001, edition of the Florida Administrative Weekly) were filed with the Division by Petitioner Lane (on April 10, 2001) and by all Joint Petitioners excluding Save Our Suwannee, Inc. (on April 13, 2001). On April 21, 2001, all Joint Petitioners excluding Save Our Suwannee, Inc., filed a Request with ERC asking: that rulemaking proceedings regarding proposed Rule 62-303 be conducted under the provisions of Sections 120.569 and 120.57, Florida Statutes, as to all parties, or alternatively at least to the six petitioners; that the evidentiary processes involved under the provisions of Sections 120.569 and 120.57, Florida Statutes, be combined with the already pending DOAH proceedings of all parties, or at least the six petitioners; and that rulemaking proceedings, as to proposed Rule 62-303, be suspended pending completion of the evidentiary processes before DOAH as well as the DOAH ruling on the pending petitions, as to all parties or at least the six petitioners. The Request was considered and denied by the ERC at the outset of its hearing on the proposed rule chapter, which was held as scheduled on April 26, 2001. That same day, the ERC issued a written order denying the Request, which read, in pertinent part as follows: But for their request to combine the requested evidentiary proceeding with the existing rule challenges pending before DOAH, Petitioners have requested conversion of the instant rulemaking proceeding to an evidentiary hearing or "draw out." A draw out is authorized under proper circumstances by Section 120.54(3)(c)2, Florida Statutes, which states: "Rulemaking proceedings shall be governed solely by the provisions of this section unless a person timely asserts that the person's substantial interests will be affected in the proceeding and affirmatively demonstrates to the agency that the proceeding does not provide adequate opportunity to protect those interests. If the agency determines that the rulemaking proceeding is not adequate to protect the person's interests, it shall suspend the rulemaking proceeding and convene a separate proceeding under the provisions of ss. 120.569 and 120.57. Similarly situated persons may be requested to join and participate in the separate proceeding. Upon conclusion of the separate proceeding, the rulemaking proceeding shall be resumed." A participant in the rulemaking proceeding who requests such relief is asking to "draw out" of the rulemaking proceeding and for the agency to afford the party an evidentiary hearing in lieu thereof.[30] A copy of each of the six petitions filed by the parties with DOAH was attached to the joint notice now before the Commission. But for minor variations in allegations to establish standing, each of the six petitions sets out seventeen (17) counts with each count asserting that a particular provision, or provisions, of proposed Rule 62-303 is an invalid exercise of delegated legislative authority or otherwise a violation of Section 403.067, F.S., or the federal Clean Water Act. None of the individual petitions, or the joint notice, demonstrate that the pending rulemaking proceeding fails to protect the petitioners' substantial interests, nor have petitioners raised any factual issues that would require a separate evidentiary hearing beyond the scope of the DOAH proceedings already pending. Under these circumstances, Section 120.56(2)(b), F.S., specifically allows an agency to proceed with all other steps in the rulemaking process, except for final adoption, while a DOAH rule challenge is pending.[31] In view of the foregoing, and in exercising its discretion as afforded by Section 120.54(3)(c)2., F.S., the Commission has determined that the rulemaking proceeding adequately protects the interests asserted by each of the six petitioners who joined in the joint notice as filed April 20th, 2001. Accordingly, the petitioners' joint request for relief therein is denied. The version of the proposed rule chapter published in the March 23, 2001, edition of the Florida Administrative Weekly, with some modifications, was adopted by the ERC at its April 26, 2001, meeting (at which members of the public were given the opportunity to comment prior to ERC deliberation). The modifications were noticed in a Notice of Change published in the May 11, 2001, edition (Volume 27, Number 19) of the Florida Administrative Weekly. Contents of the ERC-Adopted Version of Proposed Rule Chapter 62- 303, Florida Administrative Code Proposed Rule Chapter 62-303, Florida Administrative Code, is entitled, "Identification of Impaired Surface Waters." It is divided into four parts. Part I: Overview Part I of proposed Rule Chapter 62-303, Florida Administrative Code, contains the following "general" provisions: Proposed Rules 62-303.100, 62-303.150, and 62- 303.200, Florida Administrative Code. Part I: Proposed Rule 62-303.100, Florida Administrative Code Proposed Rule 62-303.100, Florida Administrative Code, is entitled, "Scope and Intent." It provides an overview of the proposed rule chapter and reads as follows: This chapter establishes a methodology to identify surface waters of the state that will be included on the state's planning list of waters that will be assessed pursuant to subsections 403.067(2) and (3), Florida Statutes (F.S.). It also establishes a methodology to identify impaired waters that will be included on the state's verified list of impaired waters, for which the Department will calculate Total Maximum Daily Loads (TMDLs), pursuant to subsection 403.067(4) F.S., and which will be submitted to the United States Environmental Protection Agency (EPA) pursuant to paragraph 303(d)(1) of the Clean Water Act (CWA). Subsection 303(d) of the CWA and section 403.067, F.S., describe impaired waters as those not meeting applicable water quality standards, which is a broad term that includes designated uses, water quality criteria, the Florida antidegradation policy, and moderating provisions. However, as recognized when the water quality standards were adopted, many water bodies naturally do not meet one or more established water quality criteria at all times, even though they meet their designated use.[32] Data on exceedances of water quality criteria will provide critical information about the status of assessed waters, but it is the intent of this chapter to only list waters on the verified list that are impaired due to point source or nonpoint source pollutant discharges. It is not the intent of this chapter to include waters that do not meet water quality criteria solely due to natural conditions or physical alterations of the water body not related to pollutants. Similarly, it is not the intent of this chapter to include waters where designated uses are being met and where water quality criteria exceedances are limited to those parameters for which permitted mixing zones or other moderating provisions (such as site-specific alternative criteria) are in effect. Waters that do not meet applicable water quality standards due to natural conditions or to pollution not related to pollutants shall be noted in the state's water quality assessment prepared under subsection 305(b) of the CWA. This chapter is intended to interpret existing water quality criteria and evaluate attainment of established designated uses as set forth in Chapter 62-302, F.A.C., for the purposes of identifying water bodies or segments for which TMDLs will be established. It is not the intent of this chapter to establish new water quality criteria or standards, or to determine the applicability of existing criteria under other provisions of Florida law. In cases where this chapter relies on numeric indicators of ambient water quality as part of the methodology for determining whether existing narrative criteria are being met, these numeric values are intended to be used only in the context of developing a planning list and identifying an impaired water pursuant to this chapter. As such, exceedances of these numeric values shall not, by themselves, constitute violations of Department rules that would warrant enforcement action. Nothing in this rule is intended to limit any actions by federal, state, or local agencies, affected persons, or citizens pursuant to other rules or regulations. Pursuant to section 403.067, F.S., impaired waters shall not be listed on the verified list if reasonable assurance is provided that, as a result of existing or proposed technology-based effluent limitations and other pollution control programs under local, state, or federal authority, they will attain water quality standards in the future and reasonable progress towards attainment of water quality standards will be made by the time the next 303(d) list is scheduled to be submitted to EPA. Specific Authority 403.061, 403.067, FS. Law Implemented 403.021(11). 403.062, 403.067, FS. History -- New Subsection (1) of proposed Rule 62-303.100, Florida Administrative Code, refers to the narrowing and winnowing process (more fully described in subsequent portions of the proposed rule chapter) that will yield the Department's "updated list" of waters for which TMDLs will be calculated, which list will be submitted to the EPA in accordance with Section 303(d) of the Clean Water Act. (The Department last submitted such a list to the EPA in 1998. This list is referred to by the Department as its 1998 303(d) list.) The Department's intent not to include on its "updated list" of waters for which TMDLs will be calculated those "[w]aters that do not meet applicable water quality standards due to natural conditions or to pollution not related to pollutants," as provided in Subsection (2) of proposed Rule 62- 303.100, Florida Administrative Code, is consistent with the view expressed in Section 403.067, Florida Statutes, that TMDLs are appropriate only where there is man-induced pollution involving the discharge (from either a point or nonpoint source) of identifiable pollutants. See, e.g., Section 403.067(1), Florida Statutes ("[T]he development of a total maximum daily load program for state waters as required by s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. will promote improvements in water quality throughout the state through the coordinated control of point and nonpoint sources of pollution"); Section 403.067(4), Florida Statutes ("If a surface water or water segment is to be listed under this subsection, the department must specify the particular pollutants causing the impairment and the concentration of those pollutants causing the impairment relative to the water quality standard."); and Section 403.067(6)(a)2., Florida Statutes ("For waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution, no total maximum daily load will be required."). While "[w]aters that do not meet applicable water quality standards due to natural conditions or to pollution not related to pollutants" will not appear on the Department's "updated list" of waters for which TMDLs will be calculated, they will be included in the "water quality assessment prepared under subsection 305(b) of the CWA" (305(b) Report), which provides as follows: Each State shall prepare and submit to the Administrator by April 1, 1975, and shall bring up to date by April 1, 1976, and biennially thereafter, a report which shall include-- a description of the water quality of all navigable waters in such State during the preceding year, with appropriate supplemental descriptions as shall be required to take into account seasonal, tidal, and other variations, correlated with the quality of water required by the objective of this chapter (as identified by the Administrator pursuant to criteria published under section 1314(a) of this title) and the water quality described in subparagraph (B) of this paragraph; an analysis of the extent to which all navigable waters of such State provide for the protection and propagation of a balanced population of shellfish, fish, and wildlife, and allow recreational activities in and on the water; an analysis of the extent to which the elimination of the discharge of pollutants and a level of water quality which provides for the protection and propagation of a balanced population of shellfish, fish, and wildlife and allows recreational activities in and on the water, have been or will be achieved by the requirements of this chapter, together with recommendations as to additional action necessary to achieve such objectives and for what waters such additional action is necessary; an estimate of (i) the environmental impact, (ii) the economic and social costs necessary to achieve the objective of this chapter in such State, (iii) the economic and social benefits of such achievement, and (iv) an estimate of the date of such achievement; and a description of the nature and extent of nonpoint sources of pollutants, and recommendations as to the programs which must be undertaken to control each category of such sources, including an estimate of the costs of implementing such programs. The Administrator shall transmit such State reports, together with an analysis thereof, to Congress on or before October 1, 1975, and October 1, 1976, and biennially thereafter. The declaration made in Subsection (3) of proposed Rule 62-303.100, Florida Administrative Code, that "[t]his chapter is intended to interpret existing water quality criteria and evaluate attainment of established designated uses as set forth in Chapter 62-302, F.A.C., for the purposes of identifying water bodies or segments for which TMDLs will be established" is similar to that made in Subsection (9) of Section 403.067, Florida Statutes, that "[t]he provisions of this section are intended to supplement existing law, and nothing in this section shall be construed as altering any applicable state water quality standards." Subsection (5) of proposed Rule 62-303.100, Florida Administrative Code, together with proposed Rule 62-303.600, Florida Administrative Code (which will be discussed later), are designed to give effect to and make more specific the language in Subsection (4) of Section 403.067, Florida Statutes, that an impaired water may be listed on the Department's "updated list" of waters for which TMDLs will be calculated only "if technology-based effluent limitations and other pollution control programs under local, state, or federal authority, including Everglades restoration activities pursuant to s. 373.4592 and the National Estuary Program, which are designed to restore such waters for the pollutant of concern are not sufficient to result in attainment of applicable surface water quality standards." Section 403.061, Florida Statutes, which is cited as the "[s]pecific [a]uthority" for proposed Rule 62-303.100, Florida Statutes (and every other proposed rule in the proposed rule chapter), authorizes the Department to, among other things, "[a]dopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of [Chapter 403, Florida Statutes]." See Section 403.061(7), Florida Statutes. Section 403.062, Florida Statutes, which is included among the statutory provisions cited in proposed Rule 62- 303.100, Florida Statutes (and every other proposed rule in the proposed rule chapter) as the "[l]aw [i]mplemented," reads as follows: Code Pollution control; underground, surface, and coastal waters.-- The department and its agents shall have general control and supervision over underground water, lakes, rivers, streams, canals, ditches, and coastal waters under the jurisdiction of the state insofar as their pollution may affect the public health or impair the interest of the public or persons lawfully using them. Part I: Proposed Rule 62-303.150, Florida Administrative Proposed Rule 62-303.150, Florida Administrative Code, explains the "[r]elationship [b]etween [p]lanning and [v]erified [l]ists." It provides as follows: The Department shall follow the methodology in Section 62-303 300 to develop a planning list pursuant to subsection 403.067(2), F.S. As required by subsection 403.067(2), F.S., the planning list shall not be used in the administration or implementation of any regulatory program, and shall be submitted to EPA for informational purposes only. Waters on this planning list will be assessed pursuant to subsection 403.067(3) F.S., as part of the Department's watershed management approach. During this assessment, the Department shall determine whether the water body is impaired and whether the impairment is due to pollutant discharges using the methodology in Part III. The resultant verified list of impaired waters, which is the list of waters for which TMDLs will be developed by the Department pursuant to subsection 403.067(4), will be adopted by Secretarial Order and will be subject to challenge under subsection [sic] 120.569 and 120.57 F.S. Once adopted, the list will be submitted to the EPA pursuant to paragraph 303(d)(1) of the CWA. Consistent with state and federal requirements, opportunities for public participation, including workshops, meetings, and periods to submit comments on draft lists, will be provided as part of the development of planning and verified lists. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The initial drafts of proposed Rule Chapter 62-303, Florida Administrative Code, provided for merely a single list of impaired waters needing TMDLs. It was only after the last TAC meeting (and before the first rule development workshop) that the concept of having two lists (a preliminary, "planning list" of potentially impaired waters requiring further assessment and a final, "verified list . . . of waters for which TMDLs will be developed by the Department") was incorporated into proposed Rule Chapter 62-303, Florida Administrative Code, by Department staff (although the idea of having a "potentially impaired subset" of impaired waters was discussed at TAC meetings). Such action was taken in response to concerns raised during the rule development process that the proposed rule chapter, as then drafted with its one-list methodology, "was too restrictive, that it would only get a small subset of waters on [the Departments 303(d)] list." To decrease, in a manner consistent with the provisions of Section 403.067, Florida Statutes, the chance that an impaired water needing a TMDL would be erroneously excluded, Department staff revised the proposed rule chapter to provide for a two-step listing process where potentially impaired waters would first be placed on a "planning list" based upon criteria generally less "restrictive" than the listing criteria contained in the previous drafts of the proposed rule chapter and then further tested (if necessary) and assessed to verify if, based upon criteria generally more rigorous than the "planning list" criteria, they should be included on a "verified list" of waters needing TMDLs (to be submitted to the EPA as the state's "updated" 303(d) list). Weighing against Department staff making it any easier for a water to be placed on the "verified list" was the significant regulatory consequence of such action. Erroneously listing a water as needing a TMDL would result in the unnecessary expenditure of considerable time, money, and effort. The more rigorous the listing criteria, the less likely it would be that a water would be listed erroneously and such unnecessary expenditures made. Subsequent to the ERC's adoption of proposed Rule Chapter 62-303, Florida Administrative Code, the National Research Council (NRC),33 through one of its committees,34 acting at the request of Congress to analyze the scientific basis of the nationwide TMDL program, issued a report entitled, "Assessing the TMDL Approach to Water Quality Management" (NRC Publication). In the NRC Publication, the committee endorses a "two-list process" like the one incorporated in proposed Rule Chapter 62-303, Florida Administrative Code, explaining as follows: Determining whether there should be some minimum threshold of data available when evaluating waterbodies for attainment of water quality standards is an issue of great concern to states. On the one hand, many call for using only the "best science" in making listing decisions, while others fear that many impaired waters will not be identified in the wait for additional data. The existence of a preliminary list addresses these concerns by focusing attention on waters suspected to be impaired without imposing on stakeholders and the agencies the consequences of TMDL development, until additional information is developed and evaluated. According to Subsection (1) of proposed Rule 62- 303.150, Florida Administrative Code, "[w]aters on th[e] planning list will be assessed pursuant to subsection 403.067(3) F.S., as part of the Department's watershed management approach." The following are the major concepts incorporated in the "Department's watershed management approach": The basin management unit is the geographic or spatial unit used to divide the state into smaller areas for assessment- -generally groups of Hydrologic Unit Codes (HUCs)[35] . . . . The basin management cycle is the five- year cycle within which watersheds are assessed and management plans developed and implemented. The Management Action Plan (MAP), a document developed over the five-year cycle and subsequently updated every five years, describes the watershed's problems and how participants plan to address them. Forums and communications networks allow participants to collect and evaluate as much information as possible on their individual basins and to reach a consensus on strategic monitoring, priority water bodies, and management strategies. The statewide basin management schedule establishes the proposed sequence for assessing individual watersheds. . . . Each individual basin cycle under the "Department's watershed management approach" takes five years to complete, and is "repeated every five years." It is, in other words, an iterative process. The five phases of the cycle are as follows: Phase I: Preliminary Basin Assessment; Phase II: Strategic Monitoring; Phase III: Data Analysis and TMDL Development; Phase IV: Management Action Plan; and Phase V: Implementation. The first two phases of the cycle are discussed in greater detail in proposed Rule 62-303.700, Florida Administrative Code. Part I: Proposed Rule 62-303.200, Florida Administrative Code Proposed Rule 62-303.200, Florida Administrative Code, contains definitions of various terms and phrases used in proposed Rule Chapter 62-303, Florida Administrative Code. It provides as follows: As used in this chapter: "BioRecon" shall mean a bioassessment conducted following the procedures outlined in "Protocols for Conducting a Biological Reconnaissance in Florida Streams," Florida Department of Environmental Protection, March 13. 1995, which is incorporated by reference. "Clean techniques" shall mean those applicable field sampling procedures and analytical methods referenced in "Method 1669: Sampling Ambient Water for Trace Metals at EPA Water Quality Criteria Levels, July 1996, USEPA. Office of Water, Engineering and Analysis Division. Washington, D.C.," which is incorporated by reference. "Department" or "DEP" shall mean the Florida Department of Environmental Protection. "Designated use" shall mean the present and future most beneficial use of a body of water as designated by the Environmental Regulation Commission by means of the classification system contained in Chapter 62-302, F.A.C. "Estuary" shall mean predominantly marine regions of interaction between rivers and nearshore ocean waters, where tidal action and river flow mix fresh and salt water. Such areas include bays, mouths of rivers, and lagoons. "Impaired water" shall mean a water body or water body segment that does not meet its applicable water quality standards as set forth in Chapters 62-302 and 62-4 F.A.C., as determined by the methodology in Part III of this chapter, due in whole or in part to discharges of pollutants from point or nonpoint sources. "Lake Condition Index" shall mean the benthic macroinvertebrate component of a bioassessment conducted following the procedures outlined in "Development of Lake Condition Indexes (LCI) for Florida," Florida Department of Environmental Protection, July, 2000, which is incorporated by reference. "Natural background" shall mean the condition of waters in the absence of man- induced alterations based on the best scientific information available to the Department. The establishment of natural background for an altered waterbody may be based upon a similar unaltered waterbody or on historical pre-alteration data. "Nuisance species" shall mean species of flora or fauna whose noxious characteristics or presence in sufficient number, biomass, or areal extent may reasonably be expected to prevent, or unreasonably interfere with, a designated use of those waters. "Physical alterations" shall mean human-induced changes to the physical structure of the water body. "Planning list" shall mean the list of surface waters or segments for which assessments will be conducted to evaluate whether the water is impaired and a TMDL is needed, as provided in subsection 403.067(2), F.S. "Pollutant" shall be as defined in subsection 502(6) of the CWA. Characteristics of a discharge, including dissolved oxygen, pH, or temperature, shall also be defined as pollutants if they result or may result in the potentially harmful alteration of downstream waters. "Pollution" shall be as defined in subsection 502(19) of the CWA and subsection 403.031(2), F.S. "Predominantly marine waters" shall mean surface waters in which the chloride concentration at the surface is greater than or equal to 1,500 milligrams per liter. "Secretary" shall mean the Secretary of the Florida Department of Environmental Protection. "Spill" shall mean a short-term, unpermitted discharge to surface waters, not to include sanitary sewer overflows or chronic discharges from leaking wastewater collection systems. "Stream" shall mean a free-flowing, predominantly fresh surface water in a defined channel, and includes rivers, creeks, branches, canals, freshwater sloughs, and other similar water bodies. "Stream Condition Index" shall mean a bioassessment conducted following the procedures outlined in "Development of the Stream Condition Index (SCI) for Florida," Florida Department of Environmental Protection, May, 1996, which is incorporated by reference. "Surface water" means those waters of the State upon the surface of the earth to their landward extent, whether contained in bounds created naturally or artificially or diffused. Water from natural springs shall be classified as surface water when it exits from the spring onto the earth's surface. "Total maximum daily load" (TMDL) for an impaired water body or water body segment shall mean the sum of the individual wasteload allocations for point sources and the load allocations for nonpoint sources and natural background. Prior to determining individual wasteload allocations and load allocations, the maximum amount of a pollutant that a water body or water segment can assimilate from all sources without exceeding water quality standards must first be calculated. A TMDL shall include either an implicit or explicit margin of safety and a consideration of seasonal variations. "Verified list" shall mean the list of impaired water bodies or segments for which TMDLs will be calculated, as provided in subsection 403.067(4), F.S., and which will be submitted to EPA pursuant to paragraph 303(d)(1) of the CWA. "Water quality criteria" shall mean elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports the present and future most beneficial uses. "Water quality standards" shall mean standards composed of designated present and future most beneficial uses (classification of waters), the numerical and narrative criteria applied to the specific water uses or classification, the Florida antidegradation policy, and the moderating provisions (mixing zones, site-specific alternative criteria, and exemptions) contained in Chapter 62-302, F.A.C., and in Chapter 62-4, F.A.C., adopted pursuant to Chapter 403, F.S. "Water segment" shall mean a portion of a water body that the Department will assess and evaluate for purposes of determining whether a TMDL will be required. Water segments previously evaluated as part of the Department's 1998 305(b) Report are depicted in the map titled "Water Segments of Florida," which is incorporated by reference. "Waters" shall be those surface waters described in Section 403.031(13) Florida Statutes. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New There are some high salinity waters of the state that, although they do not have riverine input, nonetheless meet the definition of "estuary" found in Subsection (5) of proposed Rule 62-303.200, Florida Administrative Code, because they are "bays" or "lagoons," as those terms are used in the second sentence of Subsection (5). Rule Chapter 62-4, Florida Administrative Code, which is referenced in Subsections (6) and (23) of proposed Rule 62- 303.200, Florida Administrative Code, addresses the subject of "[p]ermits." According to Subsection (1) of Rule 62-4.210, Florida Administrative Code, "[n]o person shall construct any installation or facility which will reasonably be expected to be a source of . . . water pollution without first applying for and receiving a construction permit from the Department unless exempted by statute or Department rule." Subsection (1) of Rule 62-4.240, Florida Administrative Code, requires that "[a]ny person intending to discharge wastes into the waters of the State shall make application to the Department for an operation permit." An "operation permit" must: Specify the manner, nature, volume and frequency of the discharge permitted; Require proper operation and maintenance of any pollution abatement facility by qualified personnel in accordance with standards established by the Department; and Contain such additional conditions, requirements and restrictions as the Department deems necessary to preserve and protect the quality of the receiving waters and to ensure proper operation of the pollution control facilities. Rule 62-4.240(3), Florida Administrative Code. "An operation permit [will] be issued only if all Department requirements are met, including the provisions of Rules 62-302.300 and 62-302.700 and Rule 62-4.242, F.A.C." Rule 62-4.240(2), Florida Administrative Code. Subsection (1) of Rule 62-4.242, Florida Administrative Code, describes "[a]ntidegradation [p]ermitting [r]equirements." It provides as follows: Permits shall be issued when consistent with the antidegradation policy set forth in Rule 62-302.300 and, if applicable, Rule 62- 302.700. In determining whether a proposed discharge which results in water quality degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest, the department shall consider and balance the following factors: Whether the proposed project is important to and is beneficial to the public health, safety, or welfare (taking into account the policies set forth in Rules 62- 302.100, 62-302.300, and, if applicable, 62- 302.700); and Whether the proposed discharge will adversely affect conservation of fish and wildlife, including endangered or threatened species, or their habitats; and Whether the proposed discharge will adversely affect the fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge; and Whether the proposed discharge is consistent with any applicable Surface Water Improvement and Management Plan that has been adopted by a Water Management District and approved by the Department. In addition to subsection (b) above, in order for a proposed discharge (other than stormwater discharges meeting the requirements of Chapter 62-25, F.A.C.), to be necessary or desirable under federal standards and under circumstances which are clearly in the public interest, the permit applicant must demonstrate that neither of the following is economically and technologically reasonable: Reuse of domestic reclaimed water. Use of other discharge locations, the use of land application, or reuse that would minimize or eliminate the need to lower water quality. Subsections (2) and (3) of Rule 62-4.242, Florida Administrative Code, prescribe "[s]tandards [a]pplying to Outstanding Florida Waters" and "[s]tandards [a]pplying to Outstanding National Resource Waters," respectively. Subsection (4) of Rule 62-4.242, Florida Administrative Code, "prescribe[s] the means by which the Department, upon the petition of a license applicant, will equitably allocate among such persons [directly discharging significant amounts of pollutants into waters which fail to meet one or more of the water quality criteria applicable to those waters] the relative levels of abatement responsibility of each for abatement of those pollutants." Subsection (1) of Rule 62-4.244, Florida Administrative Code, provides that the Department, upon application, may "allow the water quality adjacent to a point of discharge to be degraded to the extent that only the minimum conditions described in subsection 62-302.500(1), Florida Administrative Code, apply within a limited, defined region known as the mixing zone"; provided, that the "mixing zone" does not "significantly impair any of the designated uses of the receiving body of water." Subsection 502(6) of the Clean Water Act (33 U.S.C. Section 1362(6)), which is referenced in Subsection (12) of proposed Rule 62-303.200, Florida Administrative Code, provides as follows: The term "pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. This term does not mean (A) "sewage from vessels or a discharge incidental to the normal operation of a vessel of the Armed Forces" within the meaning of section 1322 of this title; or (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources. Subsection 502(19) of the Clean Water Act (33 U.S.C. Section 1362(19)), which is referenced in Subsection (13) of proposed Rule 62-303.200, Florida Administrative Code, provides as follows: The term "pollution" means the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water. In Chapter 403, Florida Statutes, the definition of "pollution" is found, not in Subsection (2) of Section 403.031, Florida Statutes, as indicated in Subsection (13) of proposed Rule 62-303.200, Florida Administrative Code, but in Subsection (7) of the statute. The "water segments" referenced in the second sentence of Subsection (24) of proposed Rule 62-303.200, Florida Administrative Code, are, for the most part, either approximately five linear miles each (in the case of streams) or approximately five square miles each (in the case of waters not in a defined channel). Subsection (13) of Section 403.031, Florida Statutes, which is referenced in Subsection (25) of proposed Rule 62- 303.200, Florida Administrative Code, provides that "'[w]aters' include, but are not limited to, rivers, lakes, streams, springs, impoundments, wetlands, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters." The other terms and phrases defined in proposed Rule 62-303.200, Florida Administrative Code, will be discussed, where appropriate, later in this Final Order. Part II: Overview Part II of proposed Rule Chapter 62-303, Florida Administrative Code, contains the following provisions, which describe the "planning list" of potentially impaired waters and how the list will be compiled: Proposed Rules 62-303.300, 62- 303.320, 62-303.330, 62-303.340, 62-303.350, 62-303.351, 62- 303.352, 62-303.353, 62-303.360, 62-303.370, and 62-303.380, Florida Administrative Code. Code Part II: Proposed Rule 62-303.300, Florida Administrative Proposed Rule 62-303.300, Florida Administrative Code, is entitled, "Methodology to Develop the Planning List." It provides as follows: This part establishes a methodology for developing a planning list of waters to be assessed pursuant to subsections 403.067(2) and (3), F.S. A waterbody shall be placed on the planning list if it fails to meet the minimum criteria for surface waters established in Rule 62-302.500, F.A.C.; any of its designated uses, as described in this part; or applicable water quality criteria, as described in this part. It should be noted that water quality criteria are designed to protect either aquatic life use support, which is addressed in sections 62- 303.310-353, or to protect human health, which is addressed in sections 62-303.360- 380. Waters on the list of water segments submitted to EPA in 1998 that do not meet the data sufficiency requirements for the planning list shall nevertheless be included in the state's initial planning list developed pursuant to this rule. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The second sentence of Subsection (1) of proposed Rule 62-303.300, Florida Administrative Code, incorporates the concept of "independent applicability" by providing that only one of the listed requirements need be met for a water to be placed on the "planning list." At the April 26, 2001, rule adoption hearing, the ERC initially voted to delete from proposed Rule Chapter 62-303, Florida Administrative Code, the language in Subsection (2) of proposed Rule 62-303.300, Florida Administrative Code. The ERC, however, later in the hearing, reversed itself after learning of a letter, dated April 26, 2001, that was sent to the Department by Beverly H. Bannister, the Director of the EPA's Region 4 Water Management Division. Ms. Bannister's letter read, in pertinent part, as follows: EPA expressed significant concern that, under earlier versions of the IWR [Impaired Waters Rule], waters currently identified as impaired on the State's 1998 Section 303(d) list which were determined to have "insufficient data" would be removed from the State's Section 303(d) list and also not appear on the State's planning list with its associated requirement for additional data collection. As a result of EPA concerns, the latest version of the IWR provides that waters on the current 1998 Section 303(d) list that do not meet the data sufficiency requirement of the planning list will be placed on the IWR's planning list, and sufficient data will be collected to verify the water's impairment status. In further discussions with the State regarding the EPA's concern about the 2002 Section 303(d) list, the State has committed to review all waters on the 1998 303(d) list and include all waters that meet the verification requirements of the IWR on the State's 2002 list. In addition, the State will also review all available data from 1989 to 1998 for development of a statewide planning list and include on the 2002 list any additional waters that meet the verification requirements, based on data from 1994 to 1998. (The State is unable to do a complete assessment for data gathered in 1999, 2000, and 2001 because of a national problem in the upload of data into the new Federal STORET data system.) Those waters on the 1998 303(d) list that do not meet the verification requirements will be de-listed for "good cause" and placed on the State's planning list as insufficient to verify the water's use-support status according to the methodology in the IWR. The "good cause" justification for de- listing the waters is based on several factors: 1) the requirements of the State Rule that these waters be moved to a planning list for additional data collection and assessment that will occur within a reasonable period of time; 2) a determination will be made that the waters are either impaired (and placed on the 303(d) list) or attaining its uses; and 3) the State's commitment to EPA that waters on the planning list that appeared on the State's 1998 Section 303(d) list will be monitored and assessed during the first or second rotation through the State's Watershed Management Process consistent with the schedule for TMDL development in EPA's consent decree with Earthjustice. High priority water/pollutant combinations will be monitored and assessed during the first rotation of the watershed cycle (i.e., within 5 years of 2001), and low priority water/pollutant combinations will be monitored and assessed during the second rotation of the watershed cycle (i.e., within 10 years of 2001). After this additional data collection and assessment, the water will be added to the appropriate future 303(d) list if the water is verified to be impaired, or the water will be "de- listed" based on the "good cause" justification that the water is attaining its uses. Waters on the 1998 303(d) list where sufficient data exists to demonstrate the water is meeting the IWR's planning list criteria for use support will be de-listed in the 2002 303(d) list submittal. It is EPA's view that this process will achieve the intent of the CWA and will provide sufficient documentation of the waters still requiring TMDLs by FDEP. Together with the data collection requirements found in Part III of the proposed rule chapter, Subsection (2) of proposed Rule 62-303.300, Florida Administrative Code, ensures that all waters on the Department's 1998 303(d) list (which list is referenced in Subsection (2)(c) of Section 403.067, Florida Statutes) will be assessed by the Department and that they will not be eliminated from consideration for TMDL development simply because there is not enough data to determine whether a TMDL is needed. Part II: Proposed Rule 62-303.310, Florida Administrative Code Proposed Rule 62-303.310, Florida Administrative Code, is entitled, "Evaluation of Aquatic Life Use Support." It provides as follows: A Class I, II, or III water shall be placed on the planning list for assessment of aquatic life use support (propagation and maintenance of a healthy, well-balanced population of fish and wildlife) if, based on sufficient quality and quantity of data, it: exceeds applicable aquatic life-based water quality criteria as outlined in section 62-303.320, does not meet biological assessment thresholds for its water body type as outlined in section 62-303.330, is acutely or chronically toxic as outlined in section 62-303.340, or exceeds nutrient thresholds as outlined in section 62-303.350. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New This proposed rule, like Subsection (1) of proposed Rule 62-303.300, Florida Administrative Code, incorporates the concept of "independent applicability." A water need meet only one of the four listed benchmarks to be placed on the "planning list for assessment of aquatic life use support." Each of these benchmarks is discussed at greater length in one or more of the subsequent sections of Part II of the proposed rule chapter. Part II: Proposed Rule 62-303.320, Florida Administrative Code Proposed Rule 62-303.320, Florida Administrative Code, addresses the "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" benchmark described in Subsection (1) of proposed Rule 62-303.310, Florida Administrative Code. It cites Sections 403.061 and 403.067, Florida Statutes, as its "[s]pecific [a]uthority" and Sections 403.062 and 403.067, Florida Statutes, as the "[l]aw[s] [i]mplemented" by the proposed rule. Proposed Rule 62-303.320, Florida Administrative Code, establishes a statistical method (involving "data modeling," as that term is used in Subsection (3)(b)4. of Section 403.067, Florida Statutes) for use in determining whether a water should be placed on the "planning list." It is not feasible, due to limited resources, to examine a water body at every point to determine its true overall condition. Rather, samples must be taken over time and inferences drawn from the sampling results, taking into consideration the "variability [of water quality] occurring in nature" and "that some deviations from water quality standards occur as the result of natural background conditions" (as the Legislature observed in Subsection (11) of Section 403.021, Florida Statutes). The process is, necessarily, characterized by a lack of certainty and the possibility of error. As stated in the NRC Publication: Given the finite monitoring resources, it is obvious that the number of sampling stations included in the state program will ultimately limit the number of water quality measurements that can be made at each station. Thus, in addition to the problem of defining state waters and designing the monitoring network to assess those waters, fundamental statistical issues arise concerning how to interpret limited data from individual sampling stations. Statistical inference procedures must be used on the sample data to test hypotheses about whether the actual condition in the water body meets the criterion. Thus, water quality assessment is a hypothesis-testing procedure. A statistical analysis of sample data for determining whether a water body is meeting a criterion requires the definition of a null hypothesis; for listing a water body, the null hypothesis would be that the water is not impaired. The analysis is prone to the possibility of both Type I error (a false conclusion that an unimpaired water is impaired) and Type II error (a false conclusion that an impaired water is not impaired). . . . The TAC and Department staff had extensive discussions regarding the issue of what particular type of "statistical analysis" to incorporate in the proposed rule chapter before deciding on a binomial distribution analysis. The binomial model is a time-tested nonparametric statistical method that is used where there are two possible outcomes, such as, in the case of water quality sampling, whether a water quality criterion has been exceeded or not. A parametric statistical analysis, based upon an assumption of normal distribution, which, unlike the binomial model incorporated in the proposed rule chapter, takes into account the magnitude of exceedances,36 was considered, but reasonably rejected by the TAC and Department staff because it was anticipated that, in many instances, the number of samples available to the Department would not be adequate to make the underlying distributional assumption with the requisite degree of certainty. The binomial model, which takes sample size into consideration, offers greater certainty with a limited number of samples than does the parametric statistical analysis that the TAC and Department staff rejected. Nonetheless, even in the case of the binomial model, the more samples there are, the more precise the analysis will be. Both Type I errors (false positives) and Type II errors (false negatives) decrease as sample size increases. To ensure greater analytic precision, proposed Rule 62-303.320, Florida Administrative Code, and its counterpart in Part III of the proposed rule chapter (proposed Rule 62-303.420, Florida Administrative Code) contain reasonable minimum sample size requirements (ten, with limited exceptions, for placement on the "planning list," and 20 for placement on the "verified list," which is ten more than the TAC recommended37). The NRC Publication contains the following discussion regarding the appropriateness of employing a binomial model to identify impaired waters needing TMDLs: The committee does not recommend any particular statistical method for analyzing monitoring data and for listing waters. However, one possibility is that the binomial hypothesis test could be required as a minimum and practical first step (Smith et al., 2001). The binomial method is not a significant departure from the current approach--called the raw score approach--in which the listing process treats all sample observations as binary values that either exceed the criterion or do not, and the binomial method has some important advantages. For example, one limitation of the raw score approach is that it does not account for the total number of measurements made. Clearly, 1 out of 6 measurements above the criterion is a weaker case for impairment than is 6 out of 36. The binomial hypothesis test allows one to take sample size into account. By using a statistical procedure, sample sizes can be selected and one can explicitly control and make trade-offs between error rates. (see Smith et al., 2001, and Gibbons, in press, for guidance in managing the risk of false positive and false negative errors). Several states, including Florida and Virginia, are considering or are already using the binomial hypothesis test to list impaired waters. Detailed examples of how to apply the test are beyond the scope of this document, but can be found in Smith et al. (2001) and the proposed Chapter 62-303 of the Florida Administrative Code. In a footnote, the committee added the following: The choice of Type I error rate is based on the assessor's willingness to falsely categorize a water body. It also is the case that, for any sample size, the Type II error rate decreases as the acceptable Type I error rate increases. The willingness to make either kind of mistake will depend on the consequences of the resulting action (more monitoring, costs to do a TMDL plan, costs to implement controls, possible health risk) and who bears the cost (public budget, private parties, etc.). The magnitude and burden of a Type I versus Type II error depend on the statement of the null hypothesis and on the sample size. When choosing a Type I error rate, the assessor may want to explicitly consider these determinants of error rates. The TAC recommended a Type I error rate of five percent (or, stated differently, a confidence level of 95 percent) be used in making listing decisions.38 Department staff responsible for drafting the proposed rule chapter, believing that, as a matter of policy, a 95 percent confidence level was too high and that a higher Type I error rate should be tolerated in order to reduce Type II error, reasonably settled on an 80 percent confidence level for placement on the "planning list" and a 90 percent confidence level for placement on the "verified list." Scientific studies generally do not employ a confidence level below 80 percent. A 50 percent confidence level is "comparable to flipping a coin." Use of the binomial model to determine impairment for purposes of TMDL development (based upon exceedances of water quality criteria) further requires the selection of a fixed "exceedance frequency" representing an acceptable rate of violation beneath which a water segment will not be considered impaired. A permissible "exceedance frequency" accounts for the natural variability of water quality and the uncertainty that the measurements taken are representative of the overall condition of the water segment sampled. The Department, pursuant to EPA guidance, has historically used a ten percent "exceedance frequency" for purposes of identifying, in its 305(b) Report, waters not meeting their designated uses. The TAC and Department staff agreed that a ten percent "exceedance frequency" should likewise be incorporated in the proposed rule chapter. The NRC Publication contains the following discussion regarding "exceedance frequencies" in general and a ten percent "exceedance frequency" in particular: Whether the binomial or the raw score approach is used, there must be a decision on an acceptable frequency of violation for the numeric criterion, which can range from 0 percent of the time to some positive number. Under the current EPA approach, 10 percent of the sample measurements of a given pollutant made at a station may exceed the applicable criterion without having to list the surrounding waterbody. The choice of 10 percent is meant to allow for uncertainty in the decision process. Unfortunately, simply setting an upper bound on the percentage of measurements at a station that may violate a standard provides insufficient information to properly deal with the uncertainty concerning impairment. The choice of acceptable frequency of violation is also supposed to be related to whether the designated use will be compromised, which is clearly dependent on the pollutant and on waterbody characteristics such as flow rate. A determination of 10 percent cannot be expected to apply to all water quality situations. In fact, it is inconsistent with federal water quality criteria for toxics that specify allowable violation frequencies of either one day in three years, four consecutive days in three years, or 30 consecutive days in three years (which are all less than 10 percent). Embedded in the EPA raw score approach is an implication that 10 percent is an acceptable violation rate, which it may not be in certain circumstances. Nonetheless, as the chairman of the committee that produced the NRC Publication, Dr. Kenneth Reckhow, testified at the final hearing in these consolidated cases when asked whether he "believe[d] that a determination of ten percent exceedance [frequency] cannot be expected to apply to all water quality situations": the "notion of one size fits all is . . . a pragmatic approach to the limits of what can be done in a regulatory environment." Dr. Reckhow, during his testimony, declined to "endorse[] as a scientist" the use of an "exceedance frequency" of ten percent (as opposed to some other "particular level"),39 but he stated his opinion (which the undersigned accepts) that "it is important to select a level, and from a science perspective it would be useful to see states employ a level like that or levels roughly around that point and see how effectively they have worked in terms of achieving the goal of meeting designated uses." Subsection (1) of proposed Rule 62-303.320, Florida Administrative Code, sets forth in tabular form, by sample size (from ten samples to 500 samples), the minimum number of exceedances needed for placement on the "planning list." It provides as follows: Water segments shall be placed on the planning list if, using objective and credible data, as defined by the requirements specified in this section, the number of exceedances of an applicable water quality criterion due to pollutant discharges is greater than or equal to the number listed in Table 1 for the given sample size. This table provides the number of exceedances that indicate a minimum of 10% exceedance frequency with a minimum of an 80% confidence level using a binomial distribution. Table 1: Planning List Minimum number of measured exceedances needed to put a water on the Planning list with at least 80% confidence that the actual exceedance rate is greater than or equal to ten percent. Sample Are listed if they Sizes have at least this # of exceedances From To 10 15 3 16 23 4 24 31 5 32 39 6 40 47 7 48 56 8 57 65 9 66 73 10 74 82 11 83 91 12 92 100 13 101 109 14 110 118 15 119 126 16 127 136 17 137 145 18 146 154 19 155 163 20 164 172 21 173 181 22 182 190 23 191 199 24 200 208 25 209 218 26 219 227 27 228 236 28 237 245 29 246 255 30 256 264 31 265 273 32 274 282 33 283 292 34 293 301 35 302 310 36 311 320 37 321 329 38 330 338 39 339 348 40 349 357 41 358 367 42 368 376 43 377 385 44 386 395 45 396 404 46 405 414 47 415 423 48 424 432 49 433 442 50 443 451 51 452 461 52 462 470 53 471 480 54 481 489 55 490 499 56 500 500 57 The "calculations [reflected in Table 1] are correct." Subsection (2) of proposed Rule 62-303.320, Florida Administrative Code, provides as follows: The U.S. Environmental Protection Agency's Storage and Retrieval (STORET) database shall be the primary source of data used for determining water quality criteria exceedances. As required by rule 62- 40.540(3), F.A.C., the Department, other state agencies, the Water Management Districts, and local governments collecting surface water quality data in Florida shall enter the data into STORET within one year of collection. Other sampling entities that want to ensure their data will be considered for evaluation should ensure their data are entered into STORET. The Department shall consider data submitted to the Department from other sources and databases if the data meet the sufficiency and data quality requirements of this section. STORET is a "centralized data repository" maintained by the EPA. It contains publicly available water quality data, contributed by state agencies and others, on waters throughout the nation. Subsection (3) of Rule 62-40.540, Florida Administrative Code, which is referenced in Subsection (2) of proposed Rule 62-303.320, Florida Administrative Code, provides that "[t]he U.S. Environmental Protection Agency water quality data base (STORET) shall be the central repository of the state's water quality data" and that"[a]ll appropriate water quality data collected by the Department, Districts, local governments, and state agencies shall be placed in the STORET system within one year of collection." At the end of 1998, STORET underwent a major overhaul. It is "now more accommodating of meta data," which is auxiliary information about the underlying data. As Ms. Bannister indicated in her April 26, 2001, letter to the Department, there was a "problem in the upload of data into the new Federal STORET data system." This new version of STORET is still not "very user-friendly." Subsection (2) of proposed Rule 62-303.320, Florida Administrative Code, however, while it strongly encourages the entry of data into STORET, does not require that data be entered into STORET to be considered by the Department in determining whether there have been the requisite number of exceedances for placement on the "planning list," as the last sentence of Subsection (2) makes abundantly clear. Subsection (3) of proposed Rule 62-303.320, Florida Administrative Code, imposes reasonable age-related restrictions on what data can be used to determine whether a water should be placed on the "planning list" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria." It provides as follows: When determining water quality criteria exceedances, data older than ten years shall not be used to develop planning lists. Further, more recent data shall take precedence over older data if: the newer data indicate a change in water quality and this change is related to changes in pollutant loading to the watershed or improved pollution control mechanisms in the watershed contributing to the assessed area, or the Department determines that the older data do not meet the data quality requirements of this section or are no longer representative of the water quality of the segment. The Department shall note for the record that the older data were excluded and provide details about why the older data were excluded. These provisions are reasonably designed to increase the likelihood that the decision to place a water on the "planning list" will be based upon data representative of the water's current conditions. While the data that will be excluded from consideration by Subsection (3) of proposed Rule 62-303.320, Florida Administrative Code, may be objective and credible data, such data merely reflects what the conditions of the water in question were at the time the samples yielding the data were collected. Declining to rely on this data because it is too old to be a reliable indicator of current conditions is not unreasonable. The TAC recommended that listing decisions be based on data no older than five years.40 Department staff, however, believed that, for purposes of compiling a "planning list," a ten-year cut-off was more appropriate. The binomial model is predicated on independent sampling. Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, addresses "in a very straightforward, simple, but reasonable way, the notion of spatial independence and temporal independence." It provides as follows: To be assessed for water quality criteria exceedances using Table 1, a water segment shall have a minimum of ten, temporally independent samples for the ten year period. To be treated as an independent sample, samples from a given station shall be at least one week apart. Samples collected at the same location less than seven days apart shall be considered as one sample, with the median value used to represent the sampling period. However, if any of the individual values exceed acutely toxic levels, then the worst case value shall be used to represent the sampling period. The worst case value is the minimum value for dissolved oxygen, both the minimum and maximum for pH, or the maximum value for other parameters. However, when data are available from diel or depth profile studies, the lower tenth percentile value shall be used to represent worst case conditions. For the purposes of this chapter, samples collected within 200 meters of each other will be considered the same station or location, unless there is a tributary, an outfall, or significant change in the hydrography of the water. Data from different stations within a water segment shall be treated as separate samples even if collected at the same time. However, there shall be at least five independent sampling events during the ten year assessment period, with at least one sampling event conducted in three of the four seasons of the calendar year. For the purposes of this chapter, the four seasons shall be January 1 through March 31, April 1 through June 30, July 1 through September 30, and October 1 through December 31. States may set their "[a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" at either acutely toxic levels or chronically toxic levels. The EPA, based on data from toxicity tests, has determined what these acutely toxic levels and chronically toxic levels should be, and it has provided its recommendations to the states for their use in setting appropriate water quality criteria. With one exception (involving silver in predominantly marine waters), the Department, in Rule Chapter 62-302, Florida Administrative Code, has opted to establish "[a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" at chronically toxic levels, rather than at acutely toxic levels, because chronic-toxicity-based criteria are, in the Department's view, "more protective." Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, will require the Department, under certain circumstances, to determine whether acutely toxic levels of parameters listed in Rule Chapter 62-302, Florida Administrative Code (other than silver in predominantly marine waters) have been exceeded. Neither the Department's existing rules, nor the proposed rule chapter, specifies what these levels are. In making this determination, the Department intends to use the acutely toxic levels recommended by the EPA. The last two sentences of Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, address "seasonal . . . variations," as required by Subsection (3)(b)1. of Section 403.067, Florida Statutes, and do so in a manner consistent with the TAC's recommendation on the matter. As Subsection (3)(b)1. of Section 403.067, Florida Statutes, suggests, water quality may vary from season to season. Such variations tend to be more pronounced in the northern part of the state than in South Florida in the case of certain parameters, such as dissolved oxygen, which is usually "at its critical condition" during the warmer months. While certain types of exceedances may be more likely to occur during a particular season or seasons of the year, exceedances may occur at any time during the year. Department staff, as recommended by the TAC, included the last two sentences in Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, in a reasonable effort to avoid a situation where a listing decision would be based upon skewed data (provided by persons "with an agenda") reflecting only isolated instances of worst or best case conditions, as opposed to "data . . . spread throughout the year as much as possible." Data from each of the four seasons of the calendar year were not required "because then some data sets might be excluded just because they missed a quarterly sample," an outcome the TAC and Department staff considered to be undesirable because they "wanted to be all-inclusive and . . . capture all waters that in fact might even potentially be impaired" on the "planning list." Notwithstanding the "three out of four seasons" data sufficiency requirement of Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, because the proposed rule establishes an "exceedance frequency" threshold of ten percent, a water may qualify for placement on the "planning list" under the proposed rule even though all of the exceedances evidenced by the data in the Department's possession (covering at least three of the four seasons of the year) occurred in the one season when conditions are typically at their worst for the water. (If there were other exceedances, they would not be excluded from consideration under the proposed rule simply because they occurred during a time of year when exceedances are atypical.) The "three out of four seasons" requirement does not completely protect against persons "with an agenda" obtaining the result they want by providing the Department skewed data, but, as Dr. Reckhow testified at the final hearing, it would be difficult, if not impossible, for the Department to devise a rule which provides for Department consideration of data submitted by members of the public and, at the same time, completely "prevent[s] someone who is clever [enough] from contriving the analysis." As Dr. Reckhow pointed out, to counteract the data submissions of such a person, those who believe that the data is not truly representative of the overall condition of the water can "collect their own data and make the[ir] case" to the Department. Subsection (5) of proposed Rule 62-303.320, Florida Administrative Code, which reads as follows, provides two exceptions to the data sufficiency requirements of Subsection of the proposed rule: Notwithstanding the requirements of paragraph (4), water segments shall be included on the planning list if: there are less than ten samples for the segment, but there are three or more temporally independent exceedances of an applicable water quality criterion, or there are more than one exceedance of an acute toxicity-based water quality criterion in any three year period. The "three or more exceedances" exception (found in Subsection (5)(a) of proposed Rule 62-303.320, Florida Administrative Code) to the proposed rule's minimum sample size requirement of ten was not something that the "TAC ever voted on." It was included in the proposed rule by Department staff at the request of Petitioners. As noted above, the only "acute toxicity-based water quality criterion" in Rule Chapter 62-302, Florida Administrative Code, is the criterion for silver in predominantly marine waters. Accordingly, Subsection (5)(b) of proposed Rule 62-330.320, Florida Administrative Code, applies only where that criterion has been exceeded (more than once in a three year period). Subsection (6) of proposed Rule 62-330.320, Florida Administrative Code, provides that certain data (described therein) will be excluded from consideration by the Department in determining whether a water should be placed on the "planning list" pursuant to the proposed rule. It reads as follows: Values that exceed possible physical or chemical measurement constraints (pH greater than 14, for example) or that represent data transcription errors shall be excluded from the assessment. Outliers identified through statistical procedures shall be evaluated to determine whether they represent valid measures of water quality. If the Department determines that they are not valid, they shall be excluded from the assessment. However, the Department shall note for the record that the data were excluded and explain why they were excluded. The exclusion of the data described in Subsection (6) of proposed Rule 62-330.320, Florida Administrative Code, is entirely appropriate. Indeed, it would be unreasonable for the Department to consider such data. Earlier versions of Subsection (6) of proposed Rule 62-330.320, Florida Administrative Code, automatically excluded outliers from consideration. The ERC-adopted version, however, provides that outliers will first be identified41 and then examined and, only if they are determined by the Department, using its "best professional judgment," not to be "valid measures of water quality," will they be excluded from consideration. (Values, although extreme, may nonetheless "represent valid measures of water quality."). Subsection (7) of proposed Rule 62-303.320, Florida Administrative Code, which provides as follows, addresses "[q]uality assurance and [q]uality control protocols," as those terms are used in Subsection (3)(b)3. of Section 403.067, Florida Statutes: The Department shall consider all readily available water quality data. However, to be used to determine water quality exceedances, data shall be collected and analyzed in accordance with Chapter 62-160, F.A.C., and for data collected after one year from the effective date of this rule, the sampling agency must provide to the Department, either directly or through entry into STORET, all of the data quality assessment elements listed in Table 2 of the Department's Guidance Document "Data Quality Assessment Elements for Identification of Impaired Surface Waters" (DEP EAS 01-01, April 2001), which is incorporated by reference. Rule Chapter 62-160, Florida Administrative Code, which is referenced in Subsection (7)(a) of proposed Rule 62- 303.320, Florida Administrative Code, contains "[q]uality assurance requirements" that, with certain limited exceptions, "apply to all programs, projects, studies, or other activities which are required by the Department, and which involve the measurement, use, or submission of environmental data or reports to the Department." Rule 62-160.110, Florida Administrative Code. Adherence to quality assurance requirements such as those in Rule Chapter 62-160, Florida Administrative Code, is essential to obtaining data that is objective and credible. Compliance with these requirements makes it less likely that sampling results will be inaccurate. DEP EAS 01-01, April 2001, which is incorporated by reference in Subsection (7)(b) of proposed Rule 62-303.320, Florida Administrative Code, provides as follows: The Department relies on environmental data from a variety of sources to carry out its mission. Those data must satisfy the needs for which they are collected, comply with applicable standards, specifications and statutory requirements, and reflect a consideration of cost and economics. Careful project planning and routine project and data reviews, are essential to ensure that the data collected are relevant to the decisions being made. Many aspects of a project affect data quality. Sampling design, selection of parameters, sampling technique, analytical methodologies and data management activities are a few such aspects, whether the data are being collected for a compliance program, or for research activities. The level of quality of each of those elements will affect the final management decisions that are based on a project's outcome. Data quality assessment is one activity that is instrumental in ensuring that data collected are relevant and appropriate for the decisions being made. Depending on the needs of the project, the intended use of the final data and the degree of confidence required in the quality of the results, data quality assessment can be conducted at many levels. For the purposes of identification of impaired surface waters, the level of data quality assessment to be conducted (Table 1) requires providing the appropriate data elements (Table 2). If the data and applicable data elements are in an electronic format, data quality assessments can be performed automatically on large volumes of data using software tools, without significant impact to staffing. Department programs can realize significant improvement in environmental protection without additional process using these types of review routinely. Table 1: Recommended Quality Assessment Checks Quality Test Review to determine if analyses were conducted within holding times Review for qualifiers indicative of problems Screen comments for keywords indicative of problems Review laboratory certification status for particular analyte at the time analysis was performed Review data to determine if parts are significantly greater than the whole (e.g., ortho-P>total phosphorous, NH3>TKN, dissolved metal>total metal) Screen data for realistic ranges (e.g., is pH<14?) Review detection limits and quantification limits against Department criteria and program action levels to ensure adequate sensitivity Review for blank contamination Table 2: Data Elements Related to Quality Assessment ID Element Description Sample ID Unique Field Sample Identifier Parameter Name Name of parameter measured Analytical Result Result for the analytical measurement 4. Result Units Units in which measurement is reported DEP Qualifiers Qualifier code describing specific QA conditions as reported by the data provider Result Comments Free-form text where data provider relates information they consider relevant to the result Date (Time) of Sample Collection Date (Time) of Sample Preparations Date (Time) of Sample Analysis Analytical Method Method number used for sample analysis Prep Method Method number used for sample preparation prior to analysis Sample Matrix Was the sample a surface water or groundwater sample, a fresh- water or saltwater sample DOH Certificate Certificate number Number/ issued by the Laboratory ID Department of Health's lab certification program Preservatives Description of Added preservatives added to the sample after collection MDL Method detection limit for a particular result PQL Practical quantification limit for a particular result Sample Type Field identifying sample nature (e.g., environmental sample, trip blank, field blank, matrix spike, etc. Batch ID Unambiguous reference linking samples prepped or analyzed together (e.g., trip preparation, analysis Ids) 19 Field, Lab Blank Results Results for field/laboratory blank analysis required by the methods 20 CAS Number CAS registry number of the parameter measured Having the auxiliary information listed in Table 2 of DEP EAS 01-01 will help the Department evaluate the data that it receives from outside sources to determine whether the data are usable (for purposes of implementing the provisions of the proposed rule chapter). Subsection (8) of proposed Rule 62-303.320, Florida Administrative Code, also addresses "[q]uality assurance and [q]uality control protocols." It reads as follows: To be used to determine exceedances of metals criteria, surface water data for mercury shall be collected and analyzed using clean sampling and analytical techniques, and the corresponding hardness value shall be required to determine exceedances of freshwater metals criteria that are hardness dependent, and if the ambient hardness value is less than 25 mg/L as CaCO3, then a hardness value of 25 will be used to calculate the criteria. If data are not used due to sampling or analytical techniques or because hardness data were not available, the Department shall note for the record that data were excluded and explain why they were excluded. The "clean sampling and analytical techniques" referenced in Subsection (8)(a) of proposed Rule 62-303.320, Florida Administrative Code, are, as noted above, defined in Subsection (2) of proposed Rule 62-303.200, Florida Administrative Code, as "those applicable field sampling procedures and analytical methods" permitted by the EPA's "Method 1669." "Method 1669" is a "performance-based," "guidance document" that, as its "Introduction" and introductory "Note," which read, in pertinent part, as follows, reveal, allows for the use of procedures other than those specifically described therein for "[s]ampling [a]mbient [w]ater for [t]race [m]etals at EPA [w]ater [q]uality [c]riteria [l]evels": . . . . In developing these methods, EPA found that one of the greatest difficulties in measuring pollutants at these levels was precluding sample contamination during collection, transport, and analysis. The degree of difficulty, however, is dependent on the metal and site-specific conditions. This method, therefore, is designed to provide the level of protection necessary to preclude contamination in nearly all situations. It is also designed to provide the protection necessary to produce reliable results at the lowest possible water quality criteria published by EPA. In recognition of the variety of situations to which this method may be applied, and in recognition of continuing technological advances, the method is performance-based. Alternative procedures may be used, so long as those procedures are demonstrated to yield reliable results. . . . Note: This document is intended as guidance only. Use of the terms "must," "may," and "should" are included to mean that the EPA believes that these procedures must, may, or should be followed in order to produce the desired results when using this guidance. In addition, the guidance is intended to be performance-based, in that the use of less stringent procedures may be used as long as neither samples nor blanks are contaminated when following those modified procedures. Because the only way to measure the performance of the modified procedures is through the collection and analysis of uncontaminated blank samples in accordance with this guidance and the referenced methods, it is highly recommended that any modification be thoroughly evaluated and demonstrated to be effective before field samples are collected. Subsection (8)(a) of proposed Rule 62-303.320, Florida Administrative Code, requires that "Method 1669"- permitted procedures be used only where a water is being tested to determine if it exceeds the criterion for mercury (.012 micrograms per liter in the case of Class I waters and Class III freshwaters, and .025 micrograms per liter in the case of Class II waters and Class III marine waters). Use of these procedures is necessary to avoid the sample contamination (from, among other things, standard lab bottles, hair, dandruff, atmospheric fallout, and pieces of cotton from clothing) which commonly occurs when standard, non- "Method 1669"-permitted techniques are used. Because "the criteria [for mercury are] so low" and may be exceeded due solely to such contamination, it is essential to employ "Method 1669"-permitted techniques in order to obtain results that are reliable and meaningful. The "Method 1669"-permitted techniques are approximately five times more costly to employ than standard techniques and the Department's laboratory is the only laboratory in the state (with the possible exception of a laboratory at Florida International University) able to provide "clean sampling and analytical techniques" to measure mercury levels in surface water. Nonetheless, as Timothy Fitzpatrick, the Department's chief chemist, testified at the final hearing in these consolidated cases: [I]f you want to measure methyl mercury or total mercury in surface water, you have to use clean techniques or you're measuring noise. And the whole purpose behind using clean techniques is to do sound science and to have confidence in the number. It's not to determine whether or not you're throwing out a body of data. It's to be able to get numbers that make sense. And there's no point in having a database full of information that's virtually worthless because it contains noise, analytical noise. As Subsection (8)(b) of proposed Rule 62-303.320, Florida Administrative Code, suggests, there are certain "metals for which the actual water quality criterion itself changes as the hardness [of the water, measured in milligrams per liter calcium carbonate] changes." Criteria for these metals are set (in the table contained in Rule 62-302.530, Florida Administrative Code) at higher levels for high hardness waters than for low hardness waters. To know which criterion applies in a particular case, the Department needs to know the hardness of the water sampled. Subsection (9) of proposed Rule 62-303.320, Florida Administrative Code, guards against reliance on data that, due to the use of inappropriate methods, may fail to reveal exceedances that actually exist. It provides as follows: Surface water data with values below the applicable practical quantification limit (PQL) or method detection limit (MDL) shall be assessed in accordance with Rules 62- 4.246(6)(b)-(d) and (8), F.A.C. If sampling entities want to ensure that their data will be considered for evaluation, they should review the Department's list of approved MDLs and PQLs developed pursuant to Rule 62-4.246, F.A.C., and, if available, use approved analytical methods with MDLs below the applicable water quality criteria. If there are no approved methods with MDLs below a criterion, then the method with the lowest MDL should be used. Analytical results listed as below detection or below the MDL shall not be used for developing planning lists if the MDL was above the criteria and there were, at the time of sample collection, approved analytical methods with MDLs below the criteria on the Department's list of approved MDLs and PQLs. If appropriate analytical methods were used, then data with values below the applicable MDL will be deemed to meet the applicable water quality criterion and data with values between the MDL and PQL will be deemed to be equal to the MDL. Subsections (6)(b) through (d) and (8) of Rule 62- 4.246, Florida Administrative Code, provide as follows: All results submitted to the Department for permit applications and monitoring shall be reported as follows: The approved analytical method and corresponding Department-established MDL and PQL levels shall be reported for each pollutant. The MDLs and PQLs incorporated in the permit shall constitute the minimum reporting levels for each parameter for the life of the permit. The Department shall not accept results for which the laboratory's MDLs or PQLs are greater than those incorporated in the permit. All results with laboratory MDLs and PQLs lower than those established in the permit shall be reported to the Department. Unless otherwise specified, all subsequent references to MDL and PQL pertain to the MDLs and PQLs incorporated in the permit. Results greater than or equal to the PQL shall be reported as the measured quantity. Results less than the PQL and greater than or equal to the MDL shall be reported as less than the PQL and deemed to be equal to the MDL. Results less than the MDL shall be reported as less than the MDL. * * * (8) The presence of toxicity (as established through biomonitoring), data from analysis of plant or animal tissue, contamination of sediment in the vicinity of the installation, intermittent violations of effluent limits or water quality standards, or other similar kinds of evidence reasonably related to the installation may indicate that a pollutant in the effluent may cause or contribute to violations of water quality criteria. If there is such evidence of possible water quality violations, then (unless the permittee has complied with subsection (9) below) in reviewing reports and applications to establish permit conditions and determine compliance with permits and water quality criteria, the Department shall treat any result less than the MDL of the method required in the permit or the method as required under subsection (10) below or any lower MDL reported by the permittee's laboratory as being one half the MDL (if the criterion equals or exceeds the MDL) or one half of the criterion (if the criterion is less than the MDL), for any pollutant. Without the permission of the applicant, the Department shall not use any values determined under this subsection or subsection (9) below for results obtained under a MDL superseded later by a lower MDL. The final subsection of proposed Rule 62-303.320, Florida Administrative Code, Subsection (10), provides as follows: It should be noted that the data requirements of this rule constitute the minimum data set needed to assess a water segment for impairment. Agencies or groups designing monitoring networks are encouraged to consult with the Department to determine the sample design appropriate for their specific monitoring goals. Proposed Rule 62-303.320, Florida Administrative Code, establishes a relatively "rigid" framework, based upon statistical analysis of data, with little room for the exercise of "best professional judgment," for determining whether a water qualifies for placement on the "planning list." There are advantages to taking such a "cookbook" approach. It promotes administrative efficiency and statewide uniformity in listing decisions. Furthermore, as Dr. Reckhow pointed out during his testimony, it lets the public know "how a [listing] decision is arrived at" and therefore "makes it easier for the public to get engaged and criticize the outcome." Such "rigidity," however, comes at a price, as Dr. Reckhow acknowledged, inasmuch as observations and conclusions (based upon those observations) made by the "experienced biologist who really understands the system . . . get[] lost." While proposed Rule 62-303.320, Florida Administrative Code, may rightfully be characterized as a "rigid statistical approach," it must be remembered that, in the subsequent portions of Part II of the proposed rule chapter, the Department provides other ways for a water to qualify for placement on the "planning list." A discussion of these alternatives follows. Code Part II: Proposed Rule 62-303.330, Florida Administrative Proposed Rule 62-303.330, Florida Administrative Code, is entitled, "Biological Assessment." As noted in Subsection (2) of proposed Rule 62-303.310, Florida Administrative Code, it "outline[s]" the requirements that must be met for a water to qualify for placement on the "planning list" based upon a failure to "meet biological assessment thresholds for its water body type." It lists Sections 403.061 and 403.067, Florida Statutes, as its "[s]pecific [a]uthority" and Sections 403.062 and 403.067, Florida Statutes, as the "[l]aw [i]mplemented." A "[b]iological [a]ssessment" provides more information about the overall ability of a water to sustain aquatic life than does the "data used for determining water quality exceedances" referenced in Subsection (2) of proposed Rule 62-303.320, Florida Administrative Code. This is because "[b]iological [a]ssessment[s]," as is noted in the NRC Publication, "integrate the effects of multiple stressors over time and space." As Mr. Joyner pointed out in his testimony, a "[b]iological [a]ssessment" is "more than just a snapshot like a water quality sample is of the current water quality [at the particular location sampled]." Unlike proposed Rule 62-303.320, Florida Administrative Code, proposed Rule 62-303.330, Florida Administrative Code, deals with "biological criteria," not "numerical criteri[a]," as those terms are used in Subsection (3)(c) of Section 403.067, Florida Statutes, and the method it establishes for determining "planning list" eligibility does not involve statistical analysis. Subsection (1) of proposed Rule 62-303.330, Florida Administrative Code, provides that "[b]iological data must meet the requirements of paragraphs (3) and (7) in section 62- 303.320," Florida Administrative Code, which, as noted above, impose age ("paragraph" (3)) and quality assurance/quality control and data submission ("paragraph" (7)) restrictions on the use of data. While the "biological component of STORET is not . . . usable" at this time and the biological database maintained by the Department "is not a database where members of the public can input data," pursuant to "paragraph" (7)(b) of proposed Rule 62-303.320, Florida Administrative Code, data collected by someone outside the Department that is not entered into either STORET or the Department's own biological database may still be considered by the Department if it is provided "directly" to the Department. Inasmuch as "[b]iological [a]ssessment[s]" reflect the "effects of multiple stressors over time and space," failed assessments are no more likely during one particular time of the year than another. Consequently, there is no need to limit the time of year in which "[b]iological [a]ssessment[s]" may be conducted. The first sentence of Subsection (2) of proposed Rule 62-303.330, Florida Administrative Code, provides that "[b]ioassessments used to assess streams and lakes under this rule shall include BioRecons, Stream Condition Indices (SCIs), and the benthic macroinvertebrate component of the Lake Condition Index (LCI), which only applies to clear lakes with a color less than 40 platinum cobalt units." The BioRecon and SCI, as those terms are defined in Subsections (1) and (18), respectively, of proposed Rule 62- 303.200, Florida Administrative Code, are rapid bioassessment protocols for streams developed by the Department. They are "similar to the original rapid bioassessment protocols that were designed by the U.S. EPA in [19]89." Conducting a BioRecon or SCI requires the deployment of a Standard D frame dip net approximately one and a half meters in length (including its handle), which is used to obtain samples of the best available habitat that can be reached. The samples are obtained by taking "sweeps" with the one and a half meter long dip net. Both wadable and non-wadable streams can be, and have been, sampled using this method prescribed by the BioRecon and SCI, although sampling is "more challenging when the water body is deeper than waist deep." In these cases, a boat is used to navigate to the areas where sampling will occur. The sampling "methods are identical regardless of the depth of the water." The BioRecon and SCI both include an assessment of the health of the habitat sampled, including the extent of habitat smothering from sediments and bank instability. The purpose of such an assessment is "to ascertain alteration of the physical habitat structure critical to maintenance of a healthy biological condition." Like all bioassessment protocols, the BioRecon and SCI employ "reasonable thresholds" of community health (arrived at by sampling "reference sites," which are the least affected and impacted sites in the state) against which the health of the sampled habitat is measured. Impairment is determined by the sampled habitat's departure from these "reasonable thresholds" (which represent expected or "reference" conditions). The BioRecon is newer, quicker and less comprehensive than the SCI. Only four sweeps of habitat are taken for the BioRecon, compared to 20 sweeps for the SCI. Furthermore, the BioRecon takes into consideration only three measures of community health (taxa richness, Ephemeroptera/ Plecoptera/Tricoptera Index, and Florida Index), whereas the SCI takes into account four additional measures of community health. For these reasons, the BioRecon is considered a "screening version" of the SCI. Like the BioRecon and the SCI, the LCI is a "comparative index." Conditions at the sampled site are compared to those at "reference sites" to determine the health of the aquatic community at the sampled site. Samples for the LCI are taken from the sublittoral zone of the targeted lake,42 which is divided into twelve segments. Using a petite PONAR or Ekman sampler dredge, a sample is collected from each of the twelve segments. The twelve samples are composited into a single, larger sample, which is then examined to determine what organisms it contains. The results of such examination are considered in light of six measures of community health: Total taxa, EOT taxa, percent EOT, percent Diptera, the Shannon-Weiner Diversity Index, and the Hulbert Index. Lakes larger than 1,000 acres are divided into two subbasins or into quadrants (as appropriate), and each subbasin or quadrant is sampled separately, as if it were a separate site. It is essential that persons conducting BioRecons, SCIs, and LCIs know the correct sampling techniques to use and have the requisite amount of taxonomic knowledge to identify the organisms that may be found in the samples collected. For this reason, a second sentence was included in Subsection (2) of proposed Rule 62-303.330, Florida Administrative Code, which reads as follows: Because these bioassessment procedures require specific training and expertise, persons conducting the bioassessments must comply with the quality assurance requirements of Chapter 62-160, F.A.C., attend at least eight hours of Department sanctioned field training, and pass a Department sanctioned field audit that verifies the sampler follows the applicable SOPs in Chapter 62-160, F.A.C., before their bioassessment data will be considered valid for use under this rule. The Department has developed SOPs for BioRecons, SCIs, and LCIs, which are followed by Department personnel who conduct these bioassessments. The Department is in the process of engaging in rulemaking to incorporate these SOPs in Rule Chapter 62-160, Florida Administrative Code, but had not yet, as of the time of the final hearing in these consolidated cases, completed this task.43 Subsection (3) of proposed Rule 62-303.330, Florida Administrative Code, provides as follows: Water segments with at least one failed bioassessment or one failure of the biological integrity standard, Rule 62- 302.530(11), shall be included on the planning list for assessment of aquatic life use support. In streams, the bioassessment can be an SCI or a BioRecon. Failure of a bioassessment for streams consists of a "poor" or "very poor" rating on the Stream Condition Index, or not meeting the minimum thresholds established for all three metrics (taxa richness, Ephemeroptera/Plecoptera/Tricoptera Index, and Florida Index) on the BioRecon. Failure for lakes consists of a "poor" or "very poor" rating on the Lake Condition Index. Subsection (11) of Rule 62-302.530, Florida Administrative Code, prescribes the following "biological integrity standard[s]" for Class I, II and III waters: Class I The Index for benthic macroinvertebrates shall not be reduced to less than 75% of background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from a minimum of three Hester-Dendy type artificial substrate samplers of 0.10 to 0.15m2 area each, incubated for a period of four weeks. Class II The Index for benthic macroinvertebrates shall not be reduced to less than 75% of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from a minimum of three natural substrate samples, taken with Ponar type samplers with minimum sampling area of 2252. Class III: Fresh The Index for benthic macroinvertebrates shall not be reduced to less than 75% of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from a minimum of three Hester-Dendy type artificial substrate samplers of 0.10 to 0.15m2 area each, incubated for a period of four weeks. Class III: Marine The Index for benthic macroinvertebrates shall not be reduced to less than 75% of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from a minimum of three natural substrate samples, taken with Ponar type samplers with minimum sampling area of 2252. The "Index" referred to in these standards is the Shannon-Weaver Diversity Index. Subsection (4) of proposed Rule 62-303.330, Florida Administrative Code, which reads as follows, allows the Department to rely upon "information relevant to the biological integrity of the water," other than a failure of a BioRecon, SCI, or LCI or a failure of the "biological integrity standard" set forth in Subsection (11) of Rule 62-302.530, Florida Administrative Code, to place a water on the "planning list" where the Department determines, exercising its "best professional judgment," that such "information" reveals that "aquatic life use support has [not] been maintained": Other information relevant to the biological integrity of the water segment, including information about alterations in the type, nature, or function of a water, shall also be considered when determining whether aquatic life use support has been maintained. The "other information" that would warrant placement on the "planning list" is not specified in Subsection (4) because, as Mr. Frydenborg testified at the final hearing, "[t]he possibilities are so vast." Proposed Rule 62-303.330, Florida Administrative Code, does not make mention of any rapid type of bioassessment for estuaries, the failure of which will lead to placement of a water on the "planning list," for the simple reason that the Department has yet to develop such a bioassessment.44 Estuaries, however, may qualify for "planning list" placement under proposed Rule 62-303.330, Florida Administrative Code, based upon "one failure of the biological integrity standard," pursuant to Subsection (3) of the proposed rule,45 or based upon "other information," pursuant to Subsection (4) of the proposed rule (which may include "information" regarding seagrasses, aquatic macrophytes, or algae communities). Part II: Proposed Rule 62-303.340, Florida Administrative Code Proposed Rule 62-303.340, Florida Administrative Code, is entitled, "Toxicity," and, as noted in Subsection (3) of proposed Rule 62-303.310, Florida Administrative Code, "outline[s]" the requirements that must be met for a water to qualify for placement on the "planning list" based upon it being "acutely or chronically toxic." These requirements, like those found in proposed Rule 62-303.330, Florida Administrative Code, relating to "[b]iological [a]ssessment[s]," are not statistically-based. They are as follows: All toxicity tests used to place a water segment on a planning list shall be based on surface water samples in the receiving water body and shall be conducted and evaluated in accordance with Chapter 62- 160, F.A.C., and subsections 62-302.200(1) and (4), F.A.C., respectively. Water segments with two samples indicating acute toxicity within a twelve month period shall be placed on the planning list. Samples must be collected at least two weeks apart over a twelve month period, some time during the ten years preceding the assessment. Water segments with two samples indicating chronic toxicity within a twelve month period shall be placed on the planning list. Samples must be collected at least two weeks apart, some time during the ten years preceding the assessment. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Subsection (1) of Rule 62-320.200, Florida Administrative Code, which is referenced in Subsection (1) of proposed Rule 62-303.340, Florida Administrative Code, defines "acute toxicity." It provides as follows: "Acute Toxicity" shall mean the presence of one or more substances or characteristics or components of substances in amounts which: are greater than one-third (1/3) of the amount lethal to 50% of the test organisms in 96 hours (96 hr LC50) where the 96 hr LC50 is the lowest value which has been determined for a species significant to the indigenous aquatic community; or may reasonably be expected, based upon evaluation by generally accepted scientific methods, to produce effects equal to those of the concentration of the substance specified in (a) above. Subsection (4) of Rule 62-320.200, Florida Administrative Code, which is also referenced in Subsection (1) of proposed Rule 62-303.340, Florida Administrative Code, defines "chronic toxicity." It provides as follows: "Chronic Toxicity" shall mean the presence of one or more substances or characteristics or components of substances in amounts which: are greater than one-twentieth (1/20) of the amount lethal to 50% of the test organisms in 96 hrs (96 hr LC50) where the 96 hr LC50 is the lowest value which has been determined for a species significant to the indigenous aquatic community; or may reasonably be expected, based upon evaluation by generally accepted scientific methods, to produce effects equal to those of the concentration of the substance specified in (a) above. Testing for "acute toxicity" or "chronic toxicity," within the meaning of Subsections (1) and (4) of Rule 62- 320.200, Florida Administrative Code (and therefore proposed Rule 62-303.340, Florida Administrative Code) does not involve measuring the level of any particular parameter in the water sampled. Rather, the tests focus upon the effects the sampled water has on test organisms. Mortality is the end point that characterizes "acute toxicity." "Chronic toxicity" has more subtle effects, which may include reproductive and/or growth impairment. Historically, the Department has tested effluent for "acute toxicity" and "chronic toxicity," but it has not conducted "acute toxicity" or "chronic toxicity" testing in receiving waters. The requirement of Subsections (2) and (3) of proposed Rule 62-303.340, Florida Administrative Code, that test data be no older than ten years old is reasonably designed to make it less likely that a water will be placed on the "planning list" based upon toxicity data not representative of the water's current conditions. Requiring that toxicity be established by at least "two samples" taken "at least two weeks apart" during a "twelve month period," as do Subsections (2) and (3) of proposed Rule 62-303.340, Florida Administrative Code, is also a prudent measure intended to minimize inappropriate listing decisions. To properly determine whether toxicity (which can "change over time") is a continuing problem that may be remedied by TMDL implementation, it is desirable to have more than one sample indicating toxicity. "The judgment was made [by the TAC] that two [samples] would be acceptable to make that determination." The TAC "wanted to include as much data regarding . . . toxicity . . . , and therefore lowered the bar in terms of data sufficiency . . . to only two samples." As noted above, the "minimum criteria for surface waters established in Rule 62-302.500, F.A.C.," which, if not met, will result in a water being placed on the "planning list" pursuant to Subsection (1) of proposed Rule 62-303.300, Florida Administrative Code, include the requirement that surface waters not be "acutely toxic." Whether a water should be placed on the "planning list" because it fails to meet this "minimum criterion" (or "free from") will be determined in light of the provisions of proposed Rule 62-303.340, Florida Administrative Code. Except for "[s]ilver in concentrations above 2.3 micrograms/liter in predominantly marine waters," "acute toxicity" is the only "free from" addressed in any portion of Part II of the proposed rule chapter outside of Subsection (1) of proposed Rule 62-303.300, Florida Administrative Code. Part II: Proposed Rules 62-303.350 through 62-303.353, Florida Administrative Code Proposed Rules 62-303.350 through 62-303.353, Florida Administrative Code, address "nutrients." Nutrients, which consist primarily of nitrogen and phosphorous, stimulate plant growth (and the production of organic materials). Waste water treatment facilities, certain industrial facilities that discharge waste water, phosphate mines, and agricultural and residential lands where fertilizers are used are among the sources of nutrients that affect water bodies in Florida. Nutrients are important to the health of a water body, but when they are present in excessive amounts, problems can arise. Excessive amounts of nutrients can lead to certain species, typically algaes, out-competing native species that are less able to use these nutrients, which, in turn, results in a change in the composition of the aquatic population and, subsequently, the animal population. Factors influencing how a water body responds to nutrient input include location, water body type, ecosystem characteristics, water flow, and the extent of light inhibition. As Mr. Frydenborg testified at the final hearing, nutrients are "probably the most widespread and pervasive cause of environmental disturbance in Florida" and they present "the biggest challenge [that needs to be] overcome in protecting aquatic systems." See also Rule 62-302.300(13), Florida Administrative Code ("The Department finds that excessive nutrients (total nitrogen and total phosphorus) constitute one of the most severe water quality problems facing the State."). As noted above, nutrients are among the parameters for which water quality criteria have been established by the Department in Rule 62-302.530, Florida Administrative Code. The criterion for nutrients set forth in Subsection (48)(b) of the rule (which applies to all "water quality classifications") is a "narrative . . . criterion," as that term is used in Subsection (3)(c) of Section 403.067, Florida Statutes. It is as follows: "In no case shall nutrient concentrations of a body of water be altered as to cause an imbalance of natural populations of aquatic flora or fauna." Proposed Rule 62-303.350, Florida Administrative Code, is entitled, "Interpretation of Narrative Nutrient Criteria," and, as noted in Subsection (4) of proposed Rule 62- 303.310, Florida Administrative Code, "outline[s]" the requirements that must be met for a water to qualify for placement on the "planning list" based upon excessive "nutrient enrichment." It lists Sections 403.061 and 403.067, Florida Statutes, as its "[s]pecific [a]uthority" and Sections 403.062 and 403.067, Florida Statutes, as the "[l]aw [i]mplemented." Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code, reads as follows: Trophic state indices (TSIs) and annual mean chlorophyll a values shall be the primary means for assessing whether a water should be assessed further for nutrient impairment. Other information indicating an imbalance in flora or fauna due to nutrient enrichment, including, but not limited to, algal blooms, excessive macrophyte growth, decrease in the distribution (either in density or areal coverage) of seagrasses or other submerged aquatic vegetation, changes in algal species richness, and excessive diel oxygen swings shall also be considered. Any type of water body (stream, estuary, or lake) may be placed on the "planning list" based upon the "other information" described in the second sentence of Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code. Whether to do so in a particular case will involve the exercise of "best professional judgment" on the part of the Department. The items specifically mentioned in the second sentence of Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code, "[a]lgal blooms, excessive macrophyte growth, decrease in the distribution (either in density or areal coverage) of seagrasses or other submerged aquatic vegetation,46 changes in algal species richness, and excessive diel oxygen swings," are all indicators of excessive "nutrient enrichment." The "but not limited to" language in this sentence makes it abundantly clear that this is not an exhaustive listing of "other information indicating an imbalance in flora or fauna due to nutrient enrichment" that will be considered by the Department in determining whether a water should be placed on the "planning list." During the rule development process, there were a number of members of the public who expressed the view that the Department's possession of the "information" described in the second sentence of Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code, should be the sole basis for determining "nutrient impairment" and that TSIs and annual mean chlorophyll a values should not be used. Department staff rejected these suggestions and drafted the proposed rule chapter to provide for additional ways, using TSIs and annual mean chlorophyll a values, for a water to make the "planning list" based upon excessive "nutrient enrichment." Chlorophyll a is the photosynthetic pigment in algae. Measuring chlorophyll a concentrations in water is a reasonable surrogate for measuring the amount of algal biomass present (which is indicative of the extent of nutrient enrichment inasmuch as nutrients promote algal growth). Chlorophyll a values, expressed in micrograms per liter, reflect the concentration of suspended algae (phytoplankton) in the water.47 High amounts of chlorophyll a indicate that there have been algal blooms. Algal blooms represent significant increases in algal population (phytoplankton) over a short period of time. They have a deleterious effect on the amount of dissolved oxygen in the water. Algal blooms may occur in any season. There are no adequate means to predict when they will occur. An annual mean chlorophyll a value reflects the level of nutrient enrichment occurring in a water over the course of a year. Biologists look at these values when studying the productivity of aquatic systems. Using an annual mean is the "best way" of determining whether nutrient enrichment is a consistent enough problem to cause an imbalance in flora or fauna. The TSI was developed for the Department's use in preparing 305(b) Reports. It is a "tried and true method" of assessing lakes (and only lakes) for "nutrient impairment." No comparable special index exists for other types of water bodies in this state. TSI values are derived from annual mean chlorophyll a, as well as nitrogen and phosphorous, values (which are composited). The process of "[c]alculating the Trophic State Index for lakes" was described in the "State's 1996 305(b) report" (on page 86) as follows: The Trophic State Index effectively classifies lakes based on their chlorophyll levels and nitrogen and phosphorous concentrations. Based on a classification scheme developed in 1977 by R.E. Carlson, the index relies on three indicators-- Secchi depth, chlorophyll, and total phosphorous-- to describe a lake's trophic state. A ten unit change in the index represents a doubling or halving or algal biomass. The Florida Trophic State Index is based on the same rationale but also includes total nitrogen as a third indicator. Attempts in previous 305(b) reports to include Secchi depth have caused problems in dark-water lakes and estuaries, where dark waters rather than algae diminish transparency. For this reason, our report drops Secchi depth as a category. We developed Florida lake criteria from a regression analysis of data on 313 Florida lakes. The desirable upper limit for the index is 20 micrograms per liter of chlorophyll, which corresponds to an index of 60. Doubling the chlorophyll concentration to 40 micrograms per liter increases the index to 70, which is the cutoff for undesirable (or poor) lake quality. Index values from 60 to 69 represent fair water quality. . . . The Nutrient Trophic State Index is based on phosphorous and nitrogen concentrations and the limiting nutrient concept. The latter identifies a lake as phosphorous limited if the nitrogen-to-phosphorous concentration ratio is greater than 30, nitrogen limited if the ratio is less than 10, and balanced (depending on both nitrogen and phosphorous) if the ratio is 10 to 30. The nutrient ratio is thus based solely on phosphorous if the ratio is greater than 30, solely on nitrogen if less than 10, or on both nitrogen and phosphorous if between 10 and 30. We calculated an overall Trophic State Index based on the average of the chlorophyll and nutrient indices. Calculating an overall index value requires both nitrogen and phosphorous measurements. Subsections (2) and (3) of proposed Rule 62-303.350, Florida Administrative Code, which provide as follows, impose reasonable data sufficiency and quality requirements for calculating TSIs and annual mean chlorophyll a values and changes in those values from "historical levels": To be used to determine whether a water should be assessed further for nutrient enrichment, data must meet the requirements of paragraphs (2)-(4), (6), and (7) in rule 62- 303.320, at least one sample from each season shall be required in any given year to calculate a Trophic State Index (TSI) or an annual mean chlorophyll a value for that year, and there must be annual means from at least four years, when evaluating the change in TSI over time pursuant to paragraph 62- 303.352(3). When comparing changes in chlorophyll a or TSI values to historical levels, historical levels shall be based on the lowest five-year average for the period of record. To calculate a five-year average, there must be annual means from at least three years of the five-year period. These requirements do not apply to the "other information" referenced in the second sentence of Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code. As was stated in the NRC Publication, and as Department staff recognized, "data are not the same as information." Subsection (2)(b) of proposed Rule 62-303.350, Florida Administrative Code, being more specific, modifies Subsection (2)(a) of the proposed rule, to the extent that Subsection (2)(a) incorporates by reference the requirement of Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, that "at least one sampling event [be] conducted in [only] three of the four seasons of the calendar year." Requiring data from at least each season is appropriate because the data will be used to arrive at numbers that represent annual means. Furthermore, as noted above, there is no season in which bloom events never occur in this state. Four years of data, as required by Subsection (2)(c) of proposed Rule 62-303.350, Florida Administrative Code, establishes a "genuine trend" in the TSI. The requirement, in Subsection (2)(c) of proposed Rule 62-303.350, Florida Administrative Code, that the "lowest five-year average for the period of the record" be used to establish "historical levels" was intended to make it easier for a water to be placed on the "planning list" for "nutrient impairment." 190. Proposed Rules 62-303.351, 62-303.352, and 62- 303.353, Florida Administrative Code, establish reasonable statewide TSI and annual mean chlorophyll a values, which if exceeded, will result in a water being placed on the "planning list."48 In establishing these statewide threshold values, Department staff took into consideration that averaging values obtained from samples taken during bloom events with lower values obtained from other samples taken during the course of the year (to get an annual mean value for a water) would minimize the impact of the higher values and, accordingly, they set the thresholds at levels lower than they would have if the thresholds represented, not annual mean values, but rather values that single samples, evaluated individually, could not exceed. Department staff recognized that the statewide thresholds they set "may not be protective of very low nutrient waters." They therefore, in proposed Rules 62-303.351, 62- 303.352, and 62-303.353, Florida Administrative Code, reasonably provided that waters not exceeding these thresholds could nonetheless get on the "planning list" for "nutrient impairment" based upon TSI values (in the case of lakes) or annual mean chlorophyll a values (in the case of streams and estuaries) if these values represented increases, of sufficient magnitude, as specified in the proposed rules, over "historical levels." Proposed Rule 62-303.351, Florida Administrative Code, is entitled, "Nutrients in Streams," and reads as follows: A stream or stream segment shall be included on the planning list for nutrients if the following biological imbalances are observed: algal mats are present in sufficient quantities to pose a nuisance or hinder reproduction of a threatened or endangered species, or annual mean chlorophyll a concentrations are greater than 20 ug/l or if data indicate annual mean chlorophyll a values have increased by more than 50% over historical values for at least two consecutive years. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The TAC and Department staff investigated the possibility of evaluating "nutrient impairment" in streams by looking at the amount of attached algae (measured in milligrams of chlorophyll a per square meter) as opposed to suspended algae, but "weren't able to come up with" an appropriate "number." They were advised of a "paper" in which the author concluded that 150 milligrams of chlorophyll a per square meter was "indicative of imbalances in more northern conditions rivers." Reviewing Florida data, the TAC and Department staff determined that this threshold would be "non-protective in our state" inasmuch as the "the highest chlorophylls" in the Florida data they reviewed were 50 to 60 milligrams of chlorophyll a per square meter. Subsection (1) of proposed Rule 62-303.351, Florida Administrative Code, which describes, in narrative terms, another type of "information indicating an imbalance in flora or fauna due to nutrient enrichment" (in addition to those types of information specified in Subsection (1) of proposed Rule 62- 303.350, Florida Administrative Code), was included in proposed Rule 62-303.351 in lieu of establishing a numerical "milligrams of chlorophyll a per square meter" threshold. The term "nuisance," as used in Subsection (1) of proposed Rule 62-303.351, Florida Administrative Code, was intended to have the same meaning as it has in Rule 62-302.500, Florida Administrative Code. "Nuisance species," as used in Rule Chapter 62-500, Florida Administrative Code, are defined as "species of flora or fauna whose noxious characteristics or presence in sufficient number, biomass, or areal extent may reasonably be expected to prevent, or unreasonably interfere with, a designated use of those waters." Mr. Joyner knew that the Suwannee River "had problems with algal mats49 and that those algal mats might hinder reproduction of the sturgeon" in the river. The "hinder reproduction of a threatened or endangered species" language was inserted in Subsection (1) of proposed Rule 62-303.351, Florida Administrative Code, "to address things like that" occurring in the Suwannee River. It was "very difficult" for the TAC and Department staff to come up with a "micrograms per liter" threshold for Subsection (2) of proposed Rule 62-303.351, Florida Administrative Code. All available data on Florida streams were reviewed before the TAC and Department staff decided on a threshold. The threshold ultimately selected, 20 micrograms per liter, "represents approximately the 80th percentile value currently found in Florida streams," according to the data reviewed. The "20 micrograms per liter" threshold, combined with the other provisions of the proposed rule and the second sentence of proposed Rule 62-303.350, Florida Administrative Code, was "thought to be something that would hold the line on future [nutrient] enrichment," particularly with respect to streams "like the lower St. Johns River which tends to act more like a lake." Anything over 20 micrograms per liter of chlorophyll a "is a clear indication that an imbalanced situation is occurring." There are some streams in Florida that have high nutrient concentrations but, because of flow conditions and water color, also have low levels of chlorophyll a in the water column (reflecting that the nutrients' presence in the water has not resulted in significant algal growth). That these streams would not qualify for placement on the "planning list" pursuant to proposed Rule 62-303.351, Florida Administrative Code, as drafted, did not concern the TAC and Department staff because they thought it appropriate "to focus on [the] realized impairment" caused by nutrients, not on their mere presence in the stream. If these nutrients travel downstream and adversely affect the downstream water to such an extent that the downstream water qualifies for a TMDL, "all the sources upstream would be addressed" in the TMDL developed for the downstream water. Pursuant to Subsection (2) of proposed Rule 62- 303.351, Florida Administrative Code, streams with "very, very low chlorophylls," well under 20 micrograms per liter, can nonetheless qualify for placement on the planning list based upon two consecutive years of increased annual mean chlorophyll a values "over historical values." In the case of a stream with "historical values" of two micrograms per liter, for instance, the increase would need to be only more than one microgram per liter. Proposed Rule 62-303.352, Florida Administrative Code, is entitled, "Nutrients in Lakes," and reads as follows: For the purposes of evaluating nutrient enrichment in lakes, TSIs shall be calculated based on the procedures outlined on pages 86 and 87 of the State's 1996 305(b) report, which are incorporated by reference. Lakes or lake segments shall be included on the planning list for nutrients if: For lakes with a mean color greater than 40 platinum cobalt units, the annual mean TSI for the lake exceeds 60, unless paleolimnological information indicates the lake was naturally greater than 60, or For lakes with a mean color less than or equal to 40 platinum cobalt units, the annual mean TSI for the lake exceeds 40, unless paleolimnological information indicates the lake was naturally greater than 40, or For any lake, data indicate that annual mean TSIs have increased over the assessment period, as indicated by a positive slope in the means plotted versus time, or the annual mean TSI has increased by more than 10 units over historical values. When evaluating the slope of mean TSIs over time, the Department shall use a Mann's one-sided, upper-tail test for trend, as described in Nonparametric Statistical Methods by M. Hollander and D. Wolfe 16 (1999 ed.), pages 376 and 724 (which are incorporated by reference), with a 95% confidence level. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New As noted above, a TSI value of 60, the threshold established in Subsection (1) of proposed Rule 62-303.352, Florida Administrative Code, for darker-colored lakes, is the equivalent of a chlorophyll a value of 20 micrograms per liter, which is the "micrograms per liter" threshold for streams established in Subsection (2) of proposed Rule 62-303.351, Florida Administrative Code. A TSI value 40, the threshold established in Subsection (2) of proposed Rule 62-303.352, Florida Administrative Code, for lighter-colored lakes, corresponds to a chlorophyll a value of five micrograms per liter, which "is an extremely low level." A TSI value of 40 is "very protective for that particular category of lake[s]." A lower threshold was established for these lighter- colored lakes (having a mean color less than or equal to 40 platinum cobalt units) because it was felt that these lakes needed "extra protection." Providing such "extra protection" is reasonably justified inasmuch as these lakes (due to their not experiencing the "infusion of leaf litter" that affects darker- colored lakes) tend to have a "lower nutrient content naturally" and therefore "very different aquatic communities" than their darker counterparts. Some lakes are naturally eutrophic or even hyper- eutrophic. Inasmuch as the TMDL program is not designed to address such natural occurrences, it makes sense to provide, as Subsections (1) and (2) of proposed Rule 62-303.352, Florida Administrative Code, do, that the TSI thresholds established therein will not apply if "paleolimnological information" indicates that the TSI of the lake in question was "naturally greater" than the threshold established for that type of lake (60 in the case of a darker-colored lake and 40 in the case of a lighter-colored lake). Lakes with TSI values that do not exceed the appropriate threshold may nonetheless be included on the "planning list" based upon "increas[es] in TSIs" pursuant to Subsection (3) of proposed Rule 62-303.352, Florida Administrative Code. Any statistically significant increase in TSI values "over the assessment period," as determined by "use [of] a Mann's one-sided, upper-tail test for trend" and a "95% confidence level" (which the TAC recommended inasmuch as it is "the more typical scientific confidence level"), or an increase in the annual mean TSI of more than ten units "over historical values," will result in a lake being listed pursuant to Subsection (3) of proposed Rule 62-303.352, Florida Administrative Code. The first of these two alternative ways of a lake getting on the "planning list" based upon "increas[es] in TSIs" is "more protective" than the second. Under this first alternative, a lake could be listed before there was more than a ten unit increase in the annual mean TSI "over historical values." A ten-unit increase in the annual mean TSI represents a doubling (or 100 percent increase) "over historical values." As noted above, pursuant to Subsection (3) of proposed Rule 62- 303.351, Florida Administrative Code, only a 50 percent increase "over historical values" in annual mean chlorophyll a values is needed for a stream to make the "planning list" and, as will be seen, proposed Rule 62-303.353, Florida Administrative Code, contains a similar "50 percent increase" provision for estuaries; however, because "lakes are much more responsive to nutrients," Department staff reasonably believed that "the ten- unit change was a protective measure." Proposed Rule 62-303.353, Florida Administrative Code, is entitled, "Nutrients in Estuaries," and reads as follows: Estuaries or estuary segments shall be included on the planning list for nutrients if their annual mean chlorophyll a for any year is greater than 11 ug/l or if data indicate annual mean chlorophyll a values have increased by more than 50% over historical values for at least two consecutive years. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Estuaries are at "the very bottom" of the watershed. The amount of nutrients in an estuary is dependent, not only on what is occurring in and around the immediate vicinity of the estuary,50 but also "what is coming down" any river flowing into it. Not all of the nutrients in the watershed reach the estuary inasmuch as "there is assimilation and uptake along the way." The "11 micrograms per liter" threshold ultimately selected as a "protective number in terms of placing estuaries on the 'planning list'" was recommended by the TAC following a review of data reflecting trends with respect to chlorophyll a levels in various Florida estuaries. In addition, the TAC heard a presentation concerning the "modeling work" done by the Tampa Bay National Estuary Program to establish "site-specific" chlorophyll a targets for segments of Tampa Bay, including the target of 13.2 micrograms per liter that was established for the Hillsborough Bay segment of Tampa Bay, which is "closer to the [nutrient] sources" than other parts of Tampa Bay. The TAC also considered information about "various bloom situations" in estuaries which led to the "general feeling" that an estuarine algal bloom involved chlorophyll a values "considerably higher" than 11 micrograms per liter. An alternative method for an estuary to make the "planning list" for "nutrient impairment" based upon a 50 percent increase in annual mean chlorophyll a values "over historical values" was included in proposed Rule 62-303.353, Florida Administrative Code, because the "11 micrograms per liter" threshold was not expected "to be adequately protect[ive]" of "the very clear sea grass communities" like those found in the Florida Keys. Part II: Proposed Rule 62-303.360, Florida Administrative Code Proposed Rule 62-303.360, Florida Administrative Code, establishes four separate ways for a water to be placed on the "planning list" for failing to provide "primary contact and recreation use support." It reads as follows: Primary Contact and Recreation Use Support A Class I, II, or III water shall be placed on the planning list for primary contact and recreation use support if: the water segment does not meet the applicable water quality criteria for bacteriological quality based on the methodology described in section 62-303.320, or the water segment includes a bathing area that was closed by a local health Department or county government for more than one week or more than once during a calendar year based on bacteriological data, or the water segment includes a bathing area for which a local health Department or county government has issued closures, advisories, or warnings totaling 21 days or more during a calendar year based on bacteriological data, or the water segment includes a bathing area that was closed or had advisories or warnings for more than 12 weeks during a calendar year based on previous bacteriological data or on derived relationships between bacteria levels and rainfall or flow. For data collected after August 1, 2000, the Florida Department of Health (DoH) database shall be the primary source of data used for determining bathing area closures. Advisories, warnings, and closures based on red tides, rip tides, sewage spills, sharks, medical wastes, hurricanes, or other factors not related to chronic discharges of pollutants shall not be included when assessing recreation use support. However, the Department shall note for the record that data were excluded and explain why they were excluded. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The "water quality criteria for bacteriological quality" referenced in Subsection (1)(a) of proposed Rule 62- 303.360, Florida Administrative Code, are set forth in Subsections (6) and (7) of Rule 62-303.530, Florida Administrative Code, which provide as follows: Parameter: Bacteriological Quality (Fecal Coliform Bacteria) Units: Number per 100 ml (Most Probable Number (MPN) or Membrane Filter (MF)) Class I: MPN or MF counts shall not exceed a monthly average of 200, nor exceed 400 in 10% of the samples, nor exceed 800 on any one day. Monthly averages shall be expressed as geometric means based on a minimum of 5 samples taken over a 30 day period. Class II: MPN shall not exceed a median value of 14 with not more than 10% of the samples exceeding 43, nor exceed 800 on any one day. Class III: Fresh: MPN or MF counts shall not exceed a monthly average of 200, nor exceed 400 in 10% of the samples, nor exceed 800 on any one day. Monthly averages shall be expressed as geometric means based on a minimum of 10 samples taken over a 30 day period. Class III: Marine: MPN or MF counts shall not exceed a monthly average of 200, nor exceed 400 in 10% of the samples, nor exceed 800 on any one day. Monthly averages shall be expressed as geometric means based on a minimum of 10 samples taken over a 30 day period. Parameter: Bacteriological Quality (Total Coliform Bacteria) Units: Number per 100 ml (Most Probable Number (MPN) or Membrane Filter (MF)) Class I: < = 1,000 as a monthly avg., nor exceed 1,000 in more than 20% of samples examined during any month, nor exceed 2,400 at any time using either MPN or MF counts. Class II: Median MPN shall not exceed 70 and not more than 10% of the samples shall exceed an MPN of 230. Class III: Fresh: < = 1,000 as a monthly average, nor exceed 1,000 in more than 20% of samples examined during any month, < = 2,400 at any time. Monthly averages shall be expressed as geometric means based on a minimum or 10 samples taken over a 30 day period, using either the MPN or MF counts. Class III: Marine: < = 1,000 as a monthly average, nor exceed 1,000 in more than 20% of samples examined during any month, < = 2,400 at any time. Monthly averages shall be expressed as geometric means based on a minimum or 10 samples taken over a 30 day period, using either the MPN or MF counts. Fecal coliform bacteria are found in the feces of animals and humans. They can be identified in the laboratory "fairly easily, usually within 24 to 48 hours" and "are used worldwide as indicators of fecal contamination and potential public health risks." Enterococci are another "distinct group of bacteria." They too are found in animal and human feces. The recommendation has been made that enterococci be used as bacteriological "indicators" for assessing "public health risk and swimmability," particularly in marine waters. The Department, however, is not convinced that there is "sufficient science at this time" to warrant adoption of this recommendation in states, like Florida, with "warmer climates," and it has not amended Rule 62-303.530, Florida Administrative Code, to provide for the assessment of bacteriological quality using enterococci counts.51 The statistical "methodology described in [proposed Rule] 62-303.320," Florida Administrative Code (which is incorporated by reference in Subsection (1)(a) of proposed Rule 62-303.360, Florida Administrative Code) is as appropriate for determining whether a water should be placed on the "planning list" based upon exceedances of bacteriological water quality criteria as it is for determining whether a water should be placed on the "planning list" for "[e]xceedances of [a]quatic [l]ife-[b]ased [c]riteria." Unlike Subsection (1)(a) of proposed Rule 62-303.360, Florida Administrative Code, Subsections (1)(b), (1)(c), and (1)(d) of the proposed rule, at least indirectly, allow for waters to be placed on the "planning list" based upon enterococci counts. The closures, advisories, and warnings referenced in Subsections (1)(b), (1)(c), and (1)(d) of proposed Rule 62- 303.360, Florida Administrative Code, are issued, not by the Department, but by local health departments or county governments, and may be based upon enterococci sampling done by those governmental entities. Subsection (1)(b) of proposed Rule 62-303.360, Florida Administrative Code, provides for listing based exclusively upon bathing area closures. It was included in the proposed rule upon the recommendation of the EPA "to track their 305(b) guidance." Both freshwater and marine bathing areas in Florida may be closed if circumstances warrant. The Department of Health (which operates the various county health departments) does not close marine beaches, but county governments may. Subsection (1)(c) of proposed Rule 62-303.360, Florida Administrative Code, provides for listing based upon any combination of closures, advisories, or warnings "totaling 21 days or more during a calendar year," provided the closures, advisories, and warnings were based upon up-to-date "bacteriological data." Department staff included this provision in the proposed rule in lieu of a provision recommended by the TAC (about which Petitioner Young had expressed concerns) that would have made it more difficult for a water to be placed on the "planning list" as a result of bacteriological data-based closures, advisories, or warnings. In doing so, Department staff exercised sound professional judgment. The 21 days or more of closures, advisories, or warnings needed for listing under the proposed rule do not have to be consecutive, although they all must occur in the same calendar year. Subsection (1)(d) of proposed Rule 62-303.360, Florida Administrative Code, like Subsection (1)(c) of the proposed rule, provides for listing based upon a combination of closures, advisories, or warnings, but it does not require that it be shown that the closures, advisories, or warnings were based upon up-to-date "bacteriological data." Under Subsection (1)(d) of the proposed rule, the closures, advisories, or warnings need only have been based upon "previous [or, in other words, historical] bacteriological data" or "derived relationships between bacteria levels and rainfall or flow." Because assessments of current bacteriological quality based upon "previous bacteriological data" or on "derived relationships between bacteria levels and rainfall or flow" are less reliable than those based upon up-to-date "bacteriological data," Department staff were reasonably justified in requiring a greater total number of days of closures, advisories, or warnings in this subsection of the proposed rule (more than 84) than they did in Subsection (1)(c) of the proposed rule (more than 21). (Like under Subsection (1)(c) of the proposed rule, the days of closures, advisories, or warnings required for listing under Subsection (1)(d) of the proposed rule do not have to be consecutive days.) Subsection (1)(d) was included in the proposed rule in response to comments made at a TAC meeting by Mike Flannery of the Pinellas County Health Department concerning Pinellas County beaches that were "left closed for long periods of time" without follow-up bacteriological testing. Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, reasonably limits the closures, advisories, and warnings upon which the Department will be able to rely in determining whether a water should be placed on the "planning list" pursuant to Subsections (1)(b), (1)(c), or (1)(d) of the proposed rule to those closures, advisories, and warnings based upon "factors . . . related to chronic discharges of pollutants." The TMDL program is designed to deal neither with short-term water quality problems caused by extraordinary events that result in atypical conditions,52 nor with water quality problems unrelated to pollutant discharges in this state. It is therefore sensible to not count, for purposes of determining "planning list" eligibility pursuant to Subsections (1)(b), (1)(c), or (1)(d) of proposed Rule 62-303.360, Florida Administrative Code, closures, advisories, and warnings that were issued because of the occurrence of such problems. A "spill," by definition (set out in Subsection (16) of proposed Rule 62-303.200, Florida Administrative Code, which is recited above), is a "short term" event that does not include "sanitary sewer overflows or chronic discharges from leaking wastewater collection systems." While a one-time, unpermitted discharge of sewage (not attributable to "sanitary sewer overflow") is a "short- term" event constituting a "sewage spill," as that term is used in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, repeated unpermitted discharges occurring over an extended period of time (with or without interruption) do not qualify as "sewage spills" and therefore Subsection (3) of the proposed rule will not prevent the Department from considering closures, advisories, and warnings based upon such discharges in deciding whether the requirements for listing set forth in Subsections (1)(b), (1)(c), or (1)(d) of the proposed rule have been met. Like "sewage spills," "red tides" are among the events specifically mentioned in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code. "Red tide" is a "very loose term" that can describe a variety of occurrences. It is apparent from a reading of the language in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, in its entirety, that "red tide," as used therein, was intended to describe an event "not related to chronic discharges of pollutants." Department staff's understanding of "red tides" was shaped by comments made at a TAC meeting by one of the TAC members, George Henderson of the Florida Marine Research Institute. Mr. Henderson told those present at the meeting that "red tides are an offshore phenomenon that move on shore" and are fueled by nutrients from "unknown sources" likely located, for the most part, outside of Florida, in and around the Mississippi River. No "contrary scientific information" was offered during the rule development process.53 Lacking "scientific information" clearly establishing that "red tides," as they understood the term, were the product of "pollutant sources in Florida," Department staff reasonably concluded that closures, advisories, and warnings based upon such "red tides" should not be taken into consideration in deciding whether a water should be placed on the "planning list" pursuant to Subsections (1)(b), (1)(c), or (1)(d) of proposed Rule 62- 303.360, Florida Administrative Code, and they included language in Subsection (3) of the proposed rule to so provide. The "red tides" to which Mr. Henderson referred are harmful algae blooms that form off-shore in the Gulf of Mexico and are brought into Florida coastal waters by the wind and currents. There appears to be an association between these blooms of toxin-producing algae and nutrient enrichment, but the precise cause of these bloom events is "not completely understood." Scientists have not eliminated the possibility that, at least in some instances, these "red tides" are natural phenomena not the result of any pollutant loading either in or outside of Florida. The uncertainty surrounding the exact role, if any, that Florida-discharged pollutants play in the occurrence of the "red tides" referenced in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, reasonably justifies the Department's declining, for purposes of determining whether the listing requirements of Subsections (1)(b), (1)(c), or (1)(d) of the proposed rule have been met, to take into consideration closures, advisories, and warnings based upon such "red tides." The exclusions contained in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, will have no effect on the "information" or "data" that the Department will be able to consider under any provision in Part II of the proposed rule chapter other than Subsections (1)(b), (1)(c), and (1)(d) of proposed Rule 62-303.360. This includes the provisions of proposed Rule 62-303.350, Florida Administrative Code, which, as noted above, provides, among other things, that "planning list" eligibility may be based upon "information indicating an imbalance in flora or fauna due to nutrient enrichment, including . . . algal blooms." Accordingly, notwithstanding the "red tides" exclusion in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, the presence of algal blooms of any type "indicating an imbalance in flora or fauna due to nutrient enrichment" will result in the affected water making the "planning list" pursuant to proposed Rule 62-303.350, Florida Administrative Code, to be "assessed further for nutrient impairment." Part II: Proposed Rule 62-303.370, Florida Administrative Code Proposed Rule 62-303.370, Florida Administrative Code, provides three separate ways for a water to "be placed on the planning list for fish and shellfish consumption." It reads as follows: Fish and Shellfish Consumption Use Support A Class I, II, or III water shall be placed on the planning list for fish and shellfish consumption if: the water segment does not meet the applicable Class II water quality criteria for bacteriological quality based on the methodology described in section 62-303.320, or there is either a limited or no consumption fish consumption advisory. issued by the DoH, or other authorized governmental entity, in effect for the water segment, or for Class II waters, the water segment includes an area that has been approved for shellfish harvesting by the Shellfish Evaluation and Assessment Program, but which has been downgraded from its initial harvesting classification to a more restrictive classification. Changes in harvesting classification from prohibited to unclassified do not constitute a downgrade in classification. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Subsection (1) of proposed Rule 62-303.370, Florida Administrative Code, which effectively duplicates the provisions of Subsection (1)(a) of proposed Rule 62-303.360, Florida Administrative Code, to the extent that those provisions apply to Class II waters, establishes an appropriate means of determining whether a water should "be placed on the planning list for fish and shellfish consumption." Waters that do not qualify for listing pursuant to Subsection (1) of proposed Rule 62-303.370, Florida Administrative Code, may make the "planning list" based upon "fish consumption advisories" under Subsection (2) of the proposed rule. The Department of Health, which issues these advisories, does so after conducting a statistical evaluation of fish tissue data collected from at least 12 fish. A large number of fish consumption advisories have been issued to date for a number of parameters, including, most significantly, mercury. The first fish consumption advisory was issued in 1989 after "high levels of mercury" were found in the sampled fish tissue. Many fish consumption advisories were issued ten or more years ago and are still in effect. Fish consumption advisories are continued until it is shown that they are not needed. Most of the fish tissue data for the fish consumption advisories now in effect were collected between 1989 and 1992. There is no reason to reject this data as not "being representative of the conditions under which those samples were collected." There has been data collected since 1992, but 1992 was "the last peak year" of sampling. Over the last ten years, the "focus has been on the Everglades" with respect to sampling for mercury, although sampling has occurred in "a broadly representative suite of water bodies statewide." The TAC recommended against using fish consumption advisories for listing coastal and marine waters because of the possibility that these advisories might be based upon tissue samples taken from fish who ingested mercury, or other substances being sampled, outside of the state. Department staff, however, rejected this recommendation and did not include a "coastal and marine waters" exclusion in Subsection (2) of proposed Rule 62-303.370, Florida Administrative Code. The Shellfish Evaluation and Assessment Program, which is referenced in Subsection (3) of proposed Rule 62- 303.370, Florida Administrative Code, is administered by the Florida Department of Agriculture and Consumer Services' Division of Aquaculture's Shellfish Environmental Assessment Section. The Shellfish Environmental Assessment Section (SEAS) is responsible for classifying and managing Florida shellfish harvesting areas in a manner that maximizes utilization of the state's shellfish resources and reduces the risk of shellfish- borne illness. In carrying out its responsibilities, the SEAS applies the "[s]hellfish [h]arvesting [a]rea [s]tandards" set forth in Rule 5L-1.003, Florida Administrative Code, which provides as follows: The Department shall describe and/or illustrate harvesting areas and provide harvesting area classifications as approved, conditionally approved, restricted, conditionally restricted, prohibited, or unclassified as defined herein, including criteria for opening and closing shellfish harvesting areas in accordance with Chapters II and IV of the National Shellfish Sanitation Program Model Ordinance. Copies of the document Shellfish Harvesting Area Classification Maps, revised October 14, 2001, and the document Shellfish Harvesting Area Classification Boundaries and Management Plans, revised October 14, 2001, containing shellfish harvesting area descriptions, references to shellfish harvesting area map numbers, and operating criteria herein incorporated by reference may be obtained by writing to the Department at 1203 Governors Square Boulevard, 5th Floor, Tallahassee, Florida 32301. Approved areas -- Growing areas shall be classified as approved when a sanitary survey, conducted in accordance with Chapter IV of the National Shellfish Sanitation Program Model Ordinance, indicates that pathogenic microorganisms, radionuclides, and/or harmful industrial wastes do not reach the area in dangerous concentrations and this is verified by laboratory findings whenever the sanitary survey indicates the need. Shellfish may be harvested from such areas for direct marketing. This classification is based on the following criteria: The area is not so contaminated with fecal material or poisonous or deleterious substances that consumption of the shellfish might be hazardous; and The bacteriological quality of every sampling station in those portions of the area most probably exposed to fecal contamination shall meet one of the following standards during the most unfavorable meteorological, hydrographic, seasonal, and point source pollution conditions: 1) The median or geometric mean fecal coliform Most Probable Number (MPN) of water shall not exceed 14 per 100 ml., and not more than 10 percent of the samples shall exceed a fecal coliform MPN of 43 per 100 ml. (per 5-tube, 3-dilution test) or 2) The median or geometric mean fecal coliform Most Probable Number (MPN) of water shall not exceed 14 per 100 ml., and not more than 10 percent of the samples shall exceed a fecal coliform MPN of 33 per 100 ml. (per 12-tube, single-dilution test). Harvest from temporarily closed approved areas shall be unlawful. Conditionally approved areas -- A growing area shall be classified as conditionally approved when a sanitary survey, conducted in accordance with Chapter IV of the National Shellfish Sanitation Program Model Ordinance, indicates that the area is subjected to intermittent microbiological pollution. The suitability of such an area for harvesting shellfish for direct marketing may be dependent upon attainment of established performance standards by wastewater treatment facilities discharging effluent directly or indirectly into the area. In other instances, the sanitary quality of the area may be affected by seasonal populations, climatic and/or hydrographic conditions, non-point source pollution, or sporadic use of a dock, marina, or harbor facility. Such areas shall be managed by an operating procedure that will assure that shellfish from the area are not harvested from waters not meeting approved area criteria. In order to develop effective operating procedures, these intermittent pollution events shall be predictable. Harvest from temporarily closed conditionally approved areas shall be unlawful. Restricted areas -- A growing area shall be classified as restricted when a sanitary survey, conducted in accordance with Chapter IV of the National Shellfish Sanitation Program Model Ordinance, indicates that fecal material, pathogenic microorganisms, radionuclides, harmful chemicals, and marine biotoxins are not present in dangerous concentrations after shellfish from such an area are subjected to a suitable and effective purification process. The bacteriological quality of every sampling station in those portions of the area most probably exposed to fecal contamination shall meet the following standard: The median or geometric mean fecal coliform Most Probable Number (MPN) of water shall not exceed 88 per 100 ml. and not more than 10 percent of the samples shall exceed a fecal coliform MPN of 260 per 100 ml. (per 5-tube, 3-dilution test) in those portions of the area most probably exposed to fecal contamination during the most unfavorable meteorological, hydrographic, seasonal, and point source pollution conditions. Harvest is permitted according to permit conditions specified in Rule 5L-1.009, F.A.C. Harvest from temporarily closed restricted areas shall be unlawful. Conditionally restricted area -- A growing area shall be classified as conditionally restricted when a sanitary survey or other monitoring program data, conducted in accordance with Chapter IV of the National Shellfish Sanitation Program Model Ordinance, indicates that the area is subjected to intermittent microbiological pollution. The suitability of such an area for harvest of shellfish for relaying or depuration activities is dependent upon the attainment of established performance standards by wastewater treatment facilities discharging effluent, directly or indirectly, into the area. In other instances, the sanitary quality of such an area may be affected by seasonal population, non-point sources of pollution, or sporadic use of a dock, marina, or harbor facility, and these intermittent pollution events are predictable. Such areas shall be managed by an operating procedure that will assure that shellfish from the area are not harvested from waters not meeting restricted area criteria. Harvest is permitted according to permit conditions specified in Rule 5L- 1.009, F.A.C. Harvest from temporarily closed conditionally restricted areas shall be unlawful. Prohibited area -- A growing area shall be classified as prohibited if a sanitary survey indicates that the area does not meet the approved, conditionally approved, restricted, or conditionally restricted classifications. Harvest of shellfish from such areas shall be unlawful. The waters of all man-made canals and marinas are classified prohibited regardless of their location. Unclassified area -- A growing area for which no recent sanitary survey exists, and it has not been classified as any area described in subsections (2), (3), (4), (5), or (6) above. Harvest of shellfish from such areas shall be unlawful. Approved or conditionally approved, restricted, or conditionally restricted waters shall be temporarily closed to the harvesting of shellfish when counts of the red tide organism Gymnodinium breve[54] exceed 5000 cells per liter in bays, estuaries, passes or inlets adjacent to shellfish harvesting areas. Areas closed to harvesting because of presence of the red tide organism shall not be reopened until counts are less than or equal to 5000 cells per liter inshore and offshore of the affected shellfish harvesting area, and shellfish meats have been shown to be free of toxin by laboratory analysis. The Department is authorized to open and temporarily close approved, conditionally approved, restricted, or conditionally restricted waters for harvesting of shellfish in emergencies as defined herein, in accordance with specific criteria established in operating procedures for predictively closing individual growing areas, or when growing areas do not meet the standards and guidelines established by the National Shellfish Sanitation Program . Operating procedures for predictively closing each growing area shall be developed by the Department; local agencies, including those responsible for operation of sewerage systems, and the local shellfish industry may be consulted for technical information during operating procedure development. The predictive procedure shall be based on evaluation of potential sources of pollution which may affect the area and should establish performance standards, specify necessary safety devices and measures, and define inspection and check procedures. Under Subsection (3) of proposed Rule 62-303.370, Florida Administrative Code, only the "downgrading" of an area initially approved for shellfish harvesting to a more restrictive classification will cause a Class II water to be "placed on the planning list for fish and shellfish consumption." The temporary closure of an approved harvesting area will not have the same result. Temporary closures of harvesting areas are not uncommon. These closures typically occur when there is heavy local rainfall or flooding events upstream, which result in high fecal coliform counts in the harvesting areas. While these areas are not being harvested during these temporary closures, "[p]ropagation is probably maximized in closure conditions." This is because, during these periods, there are "more nutrients for [the shellfish] to consume" inasmuch as the same natural events that cause fecal coliform counts to increase also bring the nutrients (in the form detritus) into the area. The Department of Agriculture and Consumer Services (DACS) does not reclassify an area simply because there have been short-term events, like sewage spills or extraordinary rain events, that have resulted in the area's temporary closure. Where there are frequent, extended periods of closures due to high fecal coliform counts in an area that exceed Class II water quality criteria for bacteriological quality, however, one would reasonably expect that reclassification action would be taken. Even if the DACS does not take such action, the water may nonetheless qualify for placement on the "planning list" pursuant to Subsection (1) of proposed Rule 62-303.370, Florida Administrative Code, based upon the fecal coliform data relied upon by the DACS in closing the area, provided the data meets the requirements set forth in proposed Rule 62-303.320, Florida Administrative Code. The DACS has never reclassified an area from "prohibited" to "unclassified." David Heil, the head of the SEAS, made a presentation at the April 20, 2000, TAC meeting, during which he enumerated various ways that the Department could determine "impairment as it relates to shellfish harvesting waters" and recommended, over the others, one of those options: combination of the average number and duration of closures over time. None of the options listed by Mr. Heil, including his top recommendation, were incorporated in proposed Rule 62- 303.370, Florida Administrative Code. The TAC and Department staff looked into the possibility of using the option touted by Mr. Heil, but determined that it would not be practical to do so. Relying on the DACS' reclassification of harvesting areas was deemed to be a more practical approach that was "consistent with the way the Department classifies waters as Class II and therefore it was included in the proposed rule."55 Code Part II: Proposed Rule 62-303.380, Florida Administrative Proposed Rule 62-303.380, Florida Administrative Code, provides three separate ways for a water to "be placed on the planning list for drinking water use support" and, in addition, addresses "human-health based criteria" not covered elsewhere in Part II of the proposed rule chapter. It reads as follows: Drinking Water Use Support and Protection of Human Health. A Class I water shall be placed on the planning list for drinking water use support if: the water segment does not meet the applicable Class I water quality criteria based on the methodology described in section 62-303.320, or a public water system demonstrates to the Department that either: Treatment costs to meet applicable drinking water criteria have increased by at least 25% to treat contaminants that exceed Class I criteria or to treat blue-green algae or other nuisance algae in the source water, or the system has changed to an alternative supply because of additional costs that would be required to treat their surface water source. When determining increased treatment costs described in paragraph (b), costs due solely to new, more stringent drinking water requirements, inflation, or increases in costs of materials shall not be included. A water shall be placed on the planning list for assessment of the threat to human health if: for human health-based criteria expressed as maximums, the water segment does not meet the applicable criteria based on the methodology described in section 62- 303.320, or for human health-based criteria expressed as annual averages, the annual average concentration for any year of the assessment period exceeds the criteria. To be used to determine whether a water should be assessed further for human-health impacts, data must meet the requirements of paragraphs (2), (3), (6), and (7) in rule 62-303.320. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Use of the statistical "methodology described in [proposed Rule] 62-303.320," Florida Administrative Code, is not only appropriate (as discussed above) for making "planning list" determinations based upon "[e]xceedances of [a]quatic [l]ife- [b]ased [c]riteria" and "water quality criteria for bacteriological quality," it is also a reasonable way to determine whether a water should "be placed on the planning list for drinking water use support" based upon exceedances of "applicable Class I water quality criteria" (as Subsection (1)(a) of proposed Rule 62-303.380, Florida Administrative Code, provides) and to determine whether a water should "be placed on the planning list for assessment of the threat to human health" based upon exceedances of other "human-health based criteria expressed as maximums" (as Subsection (2)(a) of the proposed Rule 62-303.380, Florida Administrative Code, provides). Subsection (1)(b) was included in proposed Rule 62- 303.380, Florida Administrative Code, because the TAC and Department staff wanted "some other way," besides having the minimum number of exceedances of "applicable Class I water quality criteria" required by Subsection (1)(a) of the proposed rule, for a Class I water to qualify for "place[ment] on the planning list for drinking water use support." Looking at the costs necessary for public water systems to treat surface water,56 as Subsection (1)(b) of proposed Rule 62-303.380, Florida Administrative Code, allows, is a reasonable alternative means of determining whether a Class I water should be "placed on the planning list for drinking water use support." Under Subsection (1)(b) of proposed Rule 62-303.380, Florida Administrative Code, the cost analysis showing that the requirements for listing have been met must be provided by the public water system. This burden was placed on the public water system because the Department "does not have the resources to do that assessment on [its] own." The Department cannot be fairly criticized for not including in Subsection (1)(b)1. of proposed Rule 62-303.380, Florida Administrative Code, references to the other contaminants (in addition to blue-green algae) that have "been put on a list by the EPA to be . . . evaluated for future regulations" inasmuch as there are no existing criteria in Chapter 62-302, Florida Administrative Code, specifically relating to these contaminants. Particularly when read together with the third sentence of Subsection (1) of proposed Rule 62-303.300 (which provides that "[i]t should be noted water quality criteria are designed to protect either aquatic life use support, which is addressed in sections 62-303.310-353, or to protect human health, which is addressed in sections 62-303.360-380"), it is clear that the "human health-based criteria" referenced in Subsection (2) of proposed Rule 62-303.380, Florida Administrative Code, are those numerical criteria in Rule Chapter 62-302, Florida Administrative Code, designed to protect human health. While laypersons not familiar with how water quality criteria are established may not be able to determine (by themselves) which of the numerical water quality criteria in Rule Chapter 62-302, Florida Administrative Code, are "human health-based," as that term is used Subsection (2) of proposed Rule 62-303.380, Florida Administrative Code, Department staff charged with the responsibility of making listing decisions will be able to so. "[H]uman health-based criteria" for non-carcinogens are "expressed as maximums" in Rule Chapter 62-302, Florida Administrative Code. "[H]uman health-based criteria" for carcinogens are "expressed as annual averages" in Rule Chapter 62-302, Florida Administrative Code. "Annual average," as that term is used in Rule Chapter 62-302, Florida Administrative Code, is defined therein as "the maximum concentration at average annual flow conditions. (see Section 62-4.020(1), F.A.C.)." Subsection (1) of Rule 62- 4.020, Florida Administrative Code, provides that "[a]verage [a]nnual [f]low "is the long-term harmonic mean flow of the receiving water, or an equivalent flow based on generally accepted scientific procedures in waters for which such a mean cannot be calculated." The "annual mean concentration" is not exactly the same as, but it does "generally approximate" and is "roughly equivalent to," the "maximum concentration at average annual flow conditions." Using "annual mean concentrations" to determine whether there have been exceedances of a "human health-based criteria expressed as annual averages" is a practical approach that makes Subsection (2)(b) of proposed Rule 62-303.380, Florida Administrative Code, more easily "implementable" inasmuch as it obviates the need to calculate the "average annual flow," which is a "fairly complicated" exercise requiring "site-specific flow data" not needed to determine the "annual mean concentration."57 Subsection (2)(b) of proposed Rule 62-303.380, Florida Administrative Code, does not impose any minimum sample size requirements, and it requires only one exceedance of any "human health-based criteri[on] expressed as [an] annual average[]" for a water to be listed. The limitations it places on the data that can be considered (by incorporating by reference the provisions of Subsections (2), (3), (6), and (7) of proposed Rule 62-303.320, Florida Administrative Code, which have been discussed above) are reasonable. Part III: Overview Part III of proposed Rule Chapter 62-303, Florida Administrative Code, contains the following provisions, which describe the "verified list" of impaired waters for which TMDLs will be calculated, how the list will be compiled, and the manner in which waters on the list will be "prioritized" for TMDL development: Proposed Rules 62-303.400, 62-303.420, 62- 303.430, 62-303.440, 62-303.450, 62-303.460, 62-303.470, 62- 303.480, 62-303.500, 62-303.600, 62-303.700, and 62-303.710, Florida Administrative Code. Code Part III: Proposed Rule 62-303.400, Florida Administrative Proposed Rule 62-303.400, Florida Administrative Code, is entitled, "Methodology to Develop the Verified List," and reads as follows: Waters shall be verified as being impaired if they meet the requirements for the planning list in Part II and the additional requirements of sections 62- 303.420-.480. A water body that fails to meet the minimum criteria for surface waters established in Rule 62-302.500, F.A.C.; any of its designated uses, as described in this part; or applicable water quality criteria, as described in this part, shall be determined to be impaired. Additional data and information collected after the development of the planning list will be considered when assessing waters on the planning list, provided it meets the requirements of this chapter. In cases where additional data are needed for waters on the planning list to meet the data sufficiency requirements for the verified list, it is the Department's goal to collect this additional data[58] as part of its watershed management approach, with the data collected during either the same cycle that the water is initially listed on the planning list (within 1 year) or during the subsequent cycle (six years). Except for data used to evaluate historical trends in chlorophyll a or TSIs, the Department shall not use data that are more than 7.5 years old at the time the water segment is proposed for listing on the verified list. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Pursuant to the first sentence of proposed Rule 62- 303.400, Florida Administrative Code, if a water qualifies for placement on the "planning list" under a provision in Part II of the proposed rule chapter that does not have a counterpart in proposed Rules 62-303.420 through 62-303.480, Florida Administrative Code, that water will automatically be "verified as being impaired." Examples of provisions in Part II of the proposed rule chapter that do not have counterparts in proposed Rules 62-303.420 through 62-303.480, Florida Administrative Code, are: the provision in Subsection (3) of proposed Rule 62- 303.330, Florida Administrative Code, that "water segments with at least . . . one failure of the biological integrity standard, Rule 62-302.530(11), shall be included on the planning list for assessment of aquatic life use support"; Subsection (1) of proposed Rule 62-303.370, Florida Administrative Code, which provides that a water will be placed on the "planning list" if it "does not meet applicable Class II water quality criteria for bacteriological quality based upon the methodology described in section 62-303.320," Florida Administrative Code; Subsection (3) of proposed Rule 62-303.370, Florida Administrative Code, which provides that a Class II water will be placed on the "planning list" if it "includes an area that has been approved for shellfish harvesting by the Shellfish Evaluation and Assessment Program, but which has been downgraded from its initial harvesting classification to a more restrictive classification"; and Subsection (1)(b) of proposed Rule 62-303.380, Florida Administrative Code, pursuant to which a water may qualify for "planning list" placement based upon water treatment costs under the circumstances described therein. Waters that are "verified as being impaired," it should be noted, will not automatically qualify for placement on the "verified list." They will still have to be evaluated in light of the provisions (which will be discussed later in greater detail) of proposed Rule 62-303.600, Florida Administrative Code (relating to "pollution control mechanisms") and those of proposed Rules 62-303.700 and 62- 303.710, Florida Administrative Code (which require that the Department identify the "pollutant(s)" and "concentration(s)" that are "causing the impairment" before placing a water on the "verified list"). Of the "minimum criteria for surface waters established in Rule 62-302.500, F.A.C.," the only ones addressed anywhere in proposed Rules 62-303.310 through 62-303.380 and 62- 303.410 through 62-303.480, Florida Administrative Code, are the requirement that surface water not be "acutely toxic" and the requirement that predominantly marine waters not have silver in concentrations above 2.3 micrograms per liter. In determining whether there has been a failure to meet the remaining "minimum criteria," the Department will exercise its "best professional judgment." Like the second sentence of Proposed Rule 62-303.300, Florida Administrative Code, the second sentence of proposed Rule 62-303.400, Florida Administrative Code, incorporates the concept of "independent applicability" by providing that only one of the listed requirements need be met for a water to be deemed "impaired." Neither Subsection (1) of proposed Rule 62-303.400, Florida Administrative Code, nor any other provision in the proposed rule chapter, requires that a water be on the "planning list" as a prerequisite for inclusion on the "verified list." Indeed, a reading of Subsection (3)(c) of proposed Rule 62- 303.500, Florida Administration, the "prioritization" rule, which will be discussed later, leaves no reasonable doubt that, under the proposed rule chapter, a water can be placed on the "verified list" without having first been on the "planning list." The second sentence of Subsection (2) of proposed Rule 62-303.400, Florida Administrative Code, indicates when the Department hopes to be able to collect the "additional data needed for waters on the planning list to meet the [more rigorous] data sufficiency requirements for the verified list," which data the Department pledges, in subsequent provisions of Part III of the proposed rule chapter, will be collected (at some, unspecified time). The Department did not want to create a mandatory timetable for its collection of the "additional data" because it, understandably, wanted to avoid making a commitment that, due to funding shortfalls that might occur in the future, it would not be able to keep.59 If it has the funds to do so, the Department intends to collect the "additional data" within the time frame indicated in the second sentence of proposed Rule 62-303.400, Florida Administrative Code. The Department will not need to collect this "additional data" if the data is collected and presented to the Department by an "interested party" outside the Department. (The proposed rule chapter allows data collected by outside parties to be considered by the Department in making listing decisions, provided the data meets the prescribed quality requirements.) Requiring (as the third and final sentence of Subsection (2) of proposed Rule 62-303.400, Florida Administrative Code, does) that all data relied upon by the Department for placing waters on the "verified list," except for data establishing "historical trends in chlorophyll a or TSIs," under no circumstances be older than "7.5 years old at the time the water segment is proposed for listing on the verified list" is a reasonable requirement designed to avoid final listing decisions based upon outdated data not representative of the water's current conditions. As noted above, the TAC recommended that listing decisions be based upon data no older than five years old. Wanting to "capture as much data for the assessment process" as reasonably possible, Department staff determined that the appropriate maximum age of data should be two and half years older than that recommended by the TAC (the two and a half years representing the amount of time it could take to "do additional data collection" following the creation of the "planning list"). Part III: Proposed Rule 62-303.410, Florida Administrative Code Proposed Rule 62-303.410, Florida Administrative Code, is entitled, "Determination of Aquatic Life Use Support," and provides as follows: Failure to meet any of the metrics used to determine aquatic life use support listed in sections 62-303.420-.450 shall constitute verification that there is an impairment of the designated use for propagation and maintenance of a healthy, well-balanced population of fish and wildlife. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Like proposed Rule 62-303.310, Florida Administrative Code, its analogue in Part II of the proposed rule chapter, proposed Rule 62-303.410, Florida Administrative Code, incorporates the concept of "independent applicability." A failure of any of the "metrics" referenced in the proposed rule will result in "verification" of impairment. Code Part III: Proposed Rule 62-303.420, Florida Administrative Proposed Rule 62-303.420, Florida Administrative Code, the counterpart of proposed Rule 62-303.320, Florida Administrative Code, establishes a reasonable statistical method, involving binomial distribution analysis, to verify impairment based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" due to pollutant discharges. It reads as follows: Exceedances of Aquatic Life-Based Water Quality Criteria The Department shall reexamine the data used in rule 62-303.320 to determine exceedances of water quality criteria. If the exceedances are not due to pollutant discharges and reflect either physical alterations of the water body that cannot be abated or natural background conditions, the water shall not be listed on the verified list. In such cases, the Department shall note for the record why the water was not listed and provide the basis for its determination that the exceedances were not due to pollutant discharges. If the Department cannot clearly establish that the exceedances are due to natural background or physical alterations of the water body but the Department believes the exceedances are not due to pollutant discharges, it is the Department's intent to determine whether aquatic life use support is impaired through the use of bioassessment procedures referenced in section 62-303.330. The water body or segment shall not be included on the verified list for the parameter of concern if two or more independent bioassessments are conducted and no failures are reported. To be treated as independent bioassessments, they must be conducted at least two months apart. If the water was listed on the planning list and there were insufficient data from the last five years preceding the planning list assessment to meet the data distribution requirements of section 303.320(4) and to meet a minimum sample size for verification of twenty samples, additional data will be collected as needed to provide a minimum sample size of twenty. Once these additional data are collected, the Department shall re-evaluate the data using the approach outlined in rule 62- 303.320(1), but using Table 2, which provides the number of exceedances that indicate a minimum of a 10% exceedance frequency with a minimum of a 90% confidence level using a binomial distribution. The Department shall limit the analysis to data collected during the five years preceding the planning list assessment and the additional data collected pursuant to this paragraph. Table 2: Verified List Minimum number of measured exceedances needed to put a water on the Planning list with at least 90% confidence that the actual exceedance rate is greater than or equal to ten percent. Sample Are listed if they Sizes have at least this From To # of exceedances 20 25 5 26 32 6 33 40 7 41 47 8 48 55 9 56 63 10 64 71 11 72 79 12 80 88 13 89 96 14 97 104 15 105 113 16 114 121 17 122 130 18 131 138 19 139 147 20 148 156 21 157 164 22 165 173 23 174 182 24 183 191 25 192 199 26 200 208 27 209 217 28 218 226 29 227 235 30 236 244 31 245 253 32 254 262 33 263 270 34 271 279 35 280 288 36 289 297 37 298 306 38 307 315 39 316 324 40 325 333 41 334 343 42 344 352 43 353 361 44 362 370 45 371 379 46 380 388 47 389 397 48 398 406 49 407 415 50 416 424 51 425 434 52 435 443 53 444 452 54 453 461 55 462 470 56 471 479 57 480 489 58 490 498 59 499 500 60 (3) If the water was placed on the planning list based on worst case values used to represent multiple samples taken during a seven day period, the Department shall evaluate whether the worst case value should be excluded from the analysis pursuant to subsections (4) and (5). If the worst case value should not be used, the Department shall then re-evaluate the data following the methodology in rule 62-303.420(2), using the more representative worst case value or, if all valid values are below acutely toxic levels, the median value. If the water was listed on the planning list based on exceedances of water quality criteria for metals, the metals data shall be validated to determine whether the quality assurance requirements of rule 62- 303.320(7) are met and whether the sample was both collected and analyzed using clean techniques, if the use of clean techniques is appropriate. If any data cannot be validated, the Department shall re-evaluate the remaining valid data using the methodology in rule 62-303.420(2), excluding any data that cannot be validated. Values that exceed possible physical or chemical measurement constraints (pH greater than 14, for example) or that represent data transcription errors, outliers the Department determines are not valid measures of water quality, water quality criteria exceedances due solely to violations of specific effluent limitations contained in state permits authorizing discharges to surface waters, water quality criteria exceedances within permitted mixing zones for those parameters for which the mixing zones are in effect, and water quality data collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm, shall be excluded from the assessment. However, the Department shall note for the record that the data were excluded and explain why they were excluded. Once the additional data review is completed pursuant to paragraphs (1) through (5), the Department shall re-evaluate the data and shall include waters on the verified list that meet the criteria in rules 62-303.420(2) or 62-303.320(5)(b). Specific Authority: 403.061, 403.067, FS. Law Implemented: 403.021(11), 403.062, 403.067, FS. History -- New The TMDL program is intended to address only water quality impairment resulting from pollutant discharges (from point or non-point sources), as is made clear by a reading of Section 403.067, Florida Statutes, particularly Subsection 6(a)2. thereof (which, as noted above, provides that, "[f]or waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution, no maximum daily load will be required"). Subsection (1)(a) of proposed Rule 62- 303.420(1)(a), Florida Administrative Code, is in keeping with this intent. Subsection (1)(b) of proposed Rule 62-303.420, Florida Administrative Code, should be read together with Subsection (1)(a) of the proposed rule. The "physical alterations of the water body" referred to in Subsection (1)(b) are the same type of "physical alterations" referred to in Subsection (1)(a), to wit: "physical alterations of the water body that cannot be abated." "Best professional judgment" will be used by the Department in determining, as it must under Subsection (1) of proposed Rule 62-303.420, Florida Administrative Code, whether or not exceedances are due to pollutant discharges. If the Department, exercising its "best professional judgment," finds that there is not proof "clearly establish[ing] that the exceedances are due to natural background or physical alterations of the water body but the Department believes the exceedances are not due to pollutant discharges," the Department, pursuant to Subsection (1)(b) of proposed Rule 62- 303.420, Florida Administrative Code, will determine whether the water in question should be "verified as impaired" for aquatic life use support by relying on "[b]iological [a]ssessment[s]" conducted in accordance with the procedures set forth in proposed Rule 62-303.330, Florida Administrative Code (which, among other things, prohibit reliance on "[b]iological [a]ssessment[s]" based on "data older than ten years"). The results of these "[b]iological [a]ssessment[s]" will not make the Department any better able to "answer the question of whether natural background or physical alterations were responsible for [the] exceedances," but, as noted above, it will enable the Department to make a more informed decision about the overall ability of the water to sustain aquatic life. Subsection (1)(b) of proposed Rule 62-303.420, Florida Administrative Code, reasonably provides that the water will not be "verified as impaired" for aquatic life use support if there have been two or more "[b]iological [a]ssessment[s]" conducted at least two months apart over the last ten years and "no failures [have been] reported." That a water has "passe[d]" these "[b]iological [a]ssessment[s]" establishes "that aquatic life use support is being maintained" and, under such circumstances, it would be inappropriate to include that water on the "verified list." Looking at just the data "from the last five years preceding the planning list assessment," as the first sentence of Subsection (2) of proposed Rule 62-303.420, Florida Administrative Code, requires the Department to do, rather than all of the data supporting the placement of the water in question on the "planning list," regardless of when the data was collected, makes sense because, to properly discharge its responsibilities under Section 403.067, Florida Statutes, the Department must ascertain what the current overall condition of the water in question is. As noted above, Subsection (2) of proposed Rule 62- 303.420, Florida Administrative Code, requires a "minimum sample size for verification [of impairment based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria]" of twenty samples," with no exceptions. While this is more than the number of samples required for "planning list" compilation purposes under proposed Rule 62-303.320, Florida Administrative Code, it "is a very small number of samples relative to the [number of] samples that [the Department] would need to take to do a TMDL." Furthermore, unlike any provision in proposed Rule 62-303.320, Florida Administrative Code, Subsection (2) of proposed Rule 62-303.420, Florida Administrative Code, provides that, if a water (on the "planning list") lacks the required minimum number of samples, the "additional data" needed to meet the minimum sample requirement "will be collected" (at some unspecified time in the future). Because these additional samples "will be collected," the requirement of proposed Rule 62-303.420, Florida Administrative Code, that there be a minimum of 20 samples should not prevent deserving waters from ultimately being "verified as impaired" under the proposed rule (although it may serve to delay such "verification"). Such delay would occur if a water on the "planning list" had five or more exceedances within the "last five years preceding the planning list assessment" (five being the minimum number of exceedances required for "verification" under proposed Rule 62- 303.420, Florida Administrative Code), but these exceedances were based on fewer than 20 samples. The additional samples that would need to be collected to meet the minimum sample size requirement of Subsection (2) of proposed Rule 62-303.420, Florida Administrative Code, would have no effect on the Department's "verification" determination, even if these samples yielded no exceedances, given that proposed Rule 62-303.420, Florida Administrative Code, does not contain any provision comparable to Subsection (3) of Rule 62-303.320, Florida Administrative Code, providing that, under certain circumstances, "more recent data" may render "older data" unusable.60 The water would qualify for "verification" regardless of what the additional samples revealed. That is not to say, however, that taking these additional samples would serve no useful purpose. Data derived from these additional collection efforts (shedding light on the severity of the water quality problem) could be used by the Department to help it "establish priority rankings and schedules by which water bodies or segments will be subjected to total maximum daily load calculations," as the Department is required to do pursuant to Subsection (4) of Section 403.067, Florida Statutes. The "calculations [reflected in the table, Table 2, which is a part of Subsection (2) of proposed Rule 62-303.420, Florida Administrative Code] are correct." They are based on "a minimum of a 10% exceedance frequency with a minimum of a 90% confidence level using a binomial distribution." As noted above, the Department did not act unreasonably in selecting this "exceedance frequency" and "confidence level" for use in determining which waters should be "verified as impaired" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria." Subsection (4) of proposed Rule 62-303.420, Florida Administrative Code, imposes reasonable quality assurance requirements that must be met in order for "metals data" to be considered "valid" for purposes of determining whether a water has the minimum number of exceedances needed to be "verified as impaired" under the proposed rule. It requires that "Method 1669"-permitted procedures be used only where these procedures are "appropriate." Determining the appropriateness of these procedures in a particular case will require the Department to exercise its "best professional judgment," taking into consideration the amount of the metal in question needed to violate the applicable water quality criterion, in relation to the amount of contamination that could be expected to occur during sample collection and analysis if conventional techniques were used. Doing so should result in "Method 1669"-permitted procedures being deemed "appropriate" in only a few circumstances: when a water is being tested to determine if it exceeds the applicable criterion for mercury, and when testing low hardness waters61 for exceedances of the applicable criterion for cadmium and lead. It is necessary to use "Method 1669"-permitted procedures in these instances to prevent test results that are tainted by contamination occurring during sample collection and analysis. Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, reasonably excludes other data from the "verification" process. It contains the same exclusions that pursuant to Subsection (6) of proposed Rule 62-303.320, Florida Administrative Code, apply in determining whether a water should be placed on the "planning list" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" ("[v]alues that exceed possible physical or chemical measurement constraints (pH greater than 14, for example) or that represent data transcription errors, [and] outliers the Department determines are not valid measures of water quality"), plus additional exclusions. Among the additional types of data that will be excluded from consideration under Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, are "exceedances due solely to violations of specific effluent limitations contained in state permits authorizing discharges to surface waters." Permit violations, by themselves, can cause water quality impairment; however, as the Department has reasonably determined, the quickest and most efficient way to deal with such impairment is to take enforcement action against the offending permittee. To take the time and to expend the funds to develop and implement a TMDL62 to address the problem, instead of taking enforcement action, would not only be unwise and an imprudent use of the not unlimited resources available to combat poor surface water quality in this state, but would also be inconsistent with the expression of legislative intent in Subsection (4) of Section 403.067, Florida Statutes, that the TMDL program not be utilized to bring a water into compliance with water quality standards where "technology-based effluent limitations [or] other pollution control programs under local, state, or federal authority" are sufficient to achieve this result. It is true that the Department has not stopped, through enforcement, all permit violations and that, as Mr. Joyner acknowledged during his testimony at the final hearing, "there are certain cases out there where there are chronic violations of permits." The appropriate response to this situation, however, is for the Department to step up its enforcement efforts, not for it to develop and implement TMDLs for those waters that, but for these violations, would not be impaired. (Citizens dissatisfied with the Department's enforcement efforts can themselves take action, pursuant to Section 403.412(2), Florida Statutes, to seek to enjoin permit violations.) It will be "extremely difficult" to know whether exceedances are due solely to permit violations. Because of this, it does not appear likely that the Department "will be using [the permit violation exclusion contained in] proposed [R]ule [62-303.420(5), Florida Administrative Code] very often." Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, will not exclude from consideration all water quality criteria exceedances in mixing zones . Only those exceedances relating to the parameters "for which the mixing zones are in effect" will be excluded. The exclusion of these exceedances is appropriate inasmuch as, pursuant to the Department's existing rules establishing the state's water quality standards (which the Legislature made clear, in Subsections (9) and (10) of Section 403.067, Florida Statutes, it did not, by enacting Section 403.067, intend to alter or limit), these exceedances are permitted and not considered to be violations of water quality standards. To the extent that there may exist "administratively- continued" permits (that is, permits that remain in effect while a renewal application is pending, regardless of their expiration date) which provide for outdated "mixing zones," this problem should be addressed through the permitting process, not the TMDL program. A "contaminant spill," as that term is used in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, is a short-term, unpermitted discharge [of contaminants63] to surface waters." (See Subsection (16) of proposed Rule 62-303.200, Florida Administrative Code, recited above, which defines "spill," as it is used in the proposed rule chapter). It is well within the bounds of reason to exclude from consideration (as Subsection (5) of proposed Rule 62- 303.420, Florida Statutes, indicates the Department will do in deciding whether a water should be "verified as being impaired" under the proposed rule) data collected in such proximity in time to a "contaminant spill" that it reflects only the temporary effects of that "short-term" event (which are best addressed by the Department taking immediate action), rather than reflecting a chronic water quality problem of the type the TMDL program is designed to help remedy. In deciding whether this exclusion applies in a particular case, the Department will need to exercise its "best professional judgment" to determine whether the post-"contaminant spill" data reflects a "short- term" water quality problem attributable to the "spill" (in which case the exclusion will apply) or whether, instead, it reflects a chronic problem (in which case the exclusion will not apply). "Bypass" is defined in Subsection (4) of Rule 62- 620.200, Florida Administrative Code, as "the intentional diversion of waste streams from any portion of a treatment works." "Upset" is defined in Subsection (50) of Rule 62- 620.200, Florida Administrative Code, as follows: "Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, careless or improper operation. An upset constitutes an affirmative defense to an action brought for noncompliance with technology based permit effluent limitations if the requirements of upset provisions of Rule 62-620.610, F.A.C., are met. The "upset provisions of Rule 62-620.610, F.A.C." are as follows: (23) Upset Provisions. A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that: An upset occurred and that the permittee can identify the cause(s) of the upset; The permitted facility was at the time being properly operated; The permittee submitted notice of the upset as required in condition (20) of this permit; and The permittee complied with any remedial measures required under condition (5) of this permit. In any enforcement proceeding, the permittee seeking to establish the occurrence of an upset has the burden of proof. Before an enforcement proceeding is instituted, no representation made during the Department review of a claim that noncompliance was caused by an upset is final agency action subject to judicial review. Rule 62-620.610, Florida Administrative Code, also contains "[b]ypass [p]rovisions," which provide as follows: (22) Bypass Provisions. Bypass is prohibited, and the Department may take enforcement action against a permittee for bypass, unless the permittee affirmatively demonstrates that: Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; and There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated waste, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and The permittee submitted notices as required under condition (22)(b) of this permit. If the permittee knows in advance of the need for a bypass, it shall submit prior notice to the Department, if possible at least 10 days before the date of the bypass. The permittee shall submit notice of an unanticipated bypass within 24 hours of learning about the bypass as required in condition (20) of this permit. A notice shall include a description of the bypass and its cause; the period of the bypass, including exact dates and times; if the bypass has not been corrected, the anticipated time it is expected to continue; and the steps taken or planned to reduce, eliminate, and prevent recurrence of the bypass. The Department shall approve an anticipated bypass, after considering its adverse effect, if the permittee demonstrates that it will meet the three conditions listed in condition (22)(a)1. through 3. of this permit. A permittee may allow any bypass to occur which does not cause reclaimed water or effluent limitations to be exceeded if it is for essential maintenance to assure efficient operation. These bypasses are not subject to the provision of condition (22)(a) through (c) of this permit. The "bypasses" to which the Department refers in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, are those that are not prohibited (as Mr. Joyner testified and is evidenced by the grouping of "bypasses" in the same provision with "upsets" and by the fact that there is another provision in Subsection (5) of the proposed rule that deals with permit violations). Since these types of bypasses, as well as upsets, are exceptional events that, under the Department's existing rules, are allowed to occur without the permittee being guilty of a permit violation, it is reasonable, in verifying impairment under proposed Rule 62-303.420, Florida Administrative Code, to discount data tainted by their occurrence, which reflect atypical conditions resulting from legally permissible discharges. The "25-year, 24-hour storm" exclusion was included in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, in response to the TAC's recommendation that the proposed rule "exclude data from extreme storm events." The "25-year, 24-hour storm" is "commonly used in the regulatory context as a dividing line between extremely large rainfall events and less extreme events." It is a rainfall event (or as one witness, the chief of the Department's Bureau of Watershed Management, Eric Livingston, put it, a "gully washer") that produces an amount of rainfall within 24 hours that is likely to be exceeded on the average only once in 25 years. In Florida, that amount is anywhere from about eight to 11 inches, depending on location. Because a "25-year, 24-hour storm" is an extraordinary rainfall event that creates abnormal conditions in affected waters, there is reasonable justification for the Department's not considering, in the "verification" process under proposed Rule 62-303.420, Florida Administrative Code, "25-year, 24-hour storm"-impacted data. This should result in the exclusion of very little data. Data collected following less severe rainfall events (of which there are many in Florida)64 will be unaffected by the "25- year, 24-hour storm" exclusion in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code. Code Part III: Proposed Rule 62-303.430, Florida Administrative Proposed Rule 62-303.430, Florida Administrative Code, the counterpart of proposed Rule 62-303.330, Florida Administrative Code, establishes a reasonable non-statistical approach, involving "[b]iological [a]ssessment," to be used as an alternative to the statistical method described in proposed Rule 62-303.420, Florida Administrative Code, in verifying aquatic life use support impairment. Proposed Rule 62-303.430, Florida Administrative Code, reads as follows: Biological Impairment All bioassessments used to list a water on the verified list shall be conducted in accordance with Chapter 62-160, F.A.C., including Department-approved Standard Operating Procedures. To be used for placing waters on the verified list, any bioassessments conducted before the adoption of applicable SOPs for such bioassessments as part of Chapter 62-160 shall substantially comply with the subsequent SOPs. If the water was listed on the planning list based on bioassessment results, the water shall be determined to be biologically impaired if there were two or more failed bioassessments within the five years preceding the planning list assessment. If there were less than two failed bioassessments during the last five years preceding the planning list assessment the Department will conduct an additional bioassessment. If the previous failed bioassessment was a BioRecon, then an SCI will be conducted. Failure of this additional bioassessment shall constitute verification that the water is biologically impaired. If the water was listed on the planning list based on other information specified in rule 62-303.330(4) indicating biological impairment, the Department will conduct a bioassessment in the water segment, conducted in accordance with the methodology in rule 62-303.330, to verify whether the water is impaired. For streams, the bioassessment shall be an SCI. Failure of this bioassessment shall constitute verification that the water is biologically impaired. Following verification that a water is biologically impaired, a water shall be included on the verified list for biological impairment if: There are water quality data reasonably demonstrating the particular pollutant(s) causing the impairment and the concentration of the pollutant(s); and One of the following demonstrations is made: if there is a numeric criterion for the specified pollutant(s) in Chapter 62-302, F.A.C., but the criterion is met, an identification of the specific factors that reasonably demonstrate why the numeric criterion is not adequate to protect water quality and how the specific pollutant is causing the impairment, or if there is not a numeric criterion for the specified pollutant(s) in Chapter 62- 302, F.A.C., an identification of the specific factors that reasonably demonstrate how the particular pollutants are associated with the observed biological effect. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Subsection (1) of proposed Rule 62-303.430, Florida Administrative Code, was written in anticipation of the "adoption of applicable SOPs" for BioRecons, SCIs, and LCIs "as part of [Rule] Chapter 62-160," Florida Administrative Code, subsequent to the adoption of the proposed rule chapter. As noted above, at the time of the final hearing in these cases, the Department was in the process of engaging in rulemaking to incorporate in Rule Chapter 62-160, Florida Administrative Code, the SOPs for BioRecons, SCIs, and LCIs that Department personnel currently use to conduct these "[b]iological [a]ssessment[s]." Until the rulemaking process is completed and any amendments to Rule Chapter 62-160, Florida Administrative Code, become effective,65 to be "used to list a water on the verified list" pursuant to Subsection (1) of proposed Rule 62-303.430, Florida Administrative Code, "[b]iological [a]assessment[s]" need meet only the quality assurance requirements of the pre-amendment version of Rule Chapter 62-160 (which does not include SOPs for BioRecons, SCIs and LCIs). Once the amendments become effective, however, "[b]iological [a]assessment[s]," both pre- and post-amendment, will have to have been conducted in substantial compliance with the applicable SOPs included in the new version of Rule Chapter 62-160. No "[b]iological [a]assessment" will be rejected under Subsection (1) of proposed Rule 62-303.430, Florida Administrative Code, because it fails to comply with an SOP that, at the time of the "verification" determination, has not been made a part of the Department's rules. The TAC-approved requirement of Subsection (2) of proposed Rule 62-303.430, Florida Administrative Code, that there be at least "two failed bioassessments during the last five years preceding the planning list assessment" (as opposed to a longer period of time) in order for a water to be "verified as being [biologically] impaired," without the need to conduct another "[b]iological [a]assessment," is reasonably designed to avoid listing decisions that are based upon test results not representative of the existing overall biological condition of the water in question. Two such failed "[b]iological [a]assessment[s]" will provide the Department with a greater degree of assurance that the water truly suffers from "biological impairment" than it would have if only one failed "[b]iological [a]assessment" was required. If there are fewer than "two failed bioassessments during the last five years preceding the planning list assessment," Subsection (2) of proposed Rule 62-303.430, Florida Administrative Code, provides that the Department will conduct another "[b]iological [a]ssessment" to determine whether the water should be "verified as being [biologically] impaired," and failure of this additional "[b]iological [a]assessment" will constitute "verification that the water is biologically impaired." The requirement that there be another failed "[b]iological [a]assessment" to confirm "biological impairment" before a water is "verified as being [biologically] impaired" under Subsection (2) of proposed Rule 62-303.430, Florida Administrative Code, is scientifically prudent, particularly in those cases where the water was placed on the "planning list" based upon a "[b]iological [a]ssessment" conducted more than five years earlier. The failure of this additional "[b]iological [a]ssessment" is enough to get the water "verified as being [biologically] impaired" even if there were no failed "[b]iological [a]ssessment[s]" in the "last five years preceding the planning list assessment." Inasmuch as the SCI, compared to the BioRecon, is a more comprehensive and rigorous test, it is reasonable to require (as Subsection (2) of proposed Rule 62-303.430, Florida Administrative Code, does) that, in the case of a stream placed on the "planning list" as a result of a failed BioRecon, the additional "[b]iological [a]ssessment" be an SCI, not a BioRecon, and to also require (as Subsection (3) of proposed Rule 62-303.430, Florida Administrative Code, does) that an SCI, rather than a BioRecon, be conducted where a stream has been placed on the "planning list" based upon "other information specified in rule 62-303.330(4) indicating biological impairment." Until such time as the Department develops a rapid bioassessment protocol for estuaries, where the Department is required in Part II of the proposed rule chapter to conduct an additional "[b]iological [a]ssessment, the Department intends to meet this obligation by engaging in "biological integrity standard" testing. TMDLs are pollutant-specific. If a water is "verified as [biologically] impaired," but the Department is not able to identify a particular pollutant as the cause of the impairment, a TMDL cannot be developed. See Section 403.031(21), Florida Statutes (to establish TMDL it is necessary to calculate the "maximum amount of a pollutant that a water body or water segment can assimilate from all sources without exceeding water quality standards"); and Section 403.067(6)(a)2., Florida Statutes ("The total maximum daily load calculation shall establish the amount of a pollutant that a water body or water body segment may receive from all sources without exceeding water quality standards"). Accordingly, as noted above, in Subsection (3)(c) of Section 403.067, Florida Statutes, the Legislature has imposed the following perquisites to the Department listing, on its "updated list" of waters for which TMDLs will be calculated, those waters deemed to be impaired based upon "non-attainment [of] biological criteria": If the department has adopted a rule establishing a numerical criterion for a particular pollutant, a narrative or biological criterion may not be the basis for determining an impairment in connection with that pollutant unless the department identifies specific factors as to why the numerical criterion is not adequate to protect water quality. If water quality non-attainment is based on narrative or biological criteria, the specific factors concerning particular pollutants shall be identified prior to a total maximum daily load being developed for those criteria for that surface water or surface water segment. Furthermore, Subsection (4) of Section 403.067, Florida Statutes, provides that, if a water is to placed on the "updated list" on any grounds, the Department "must specify the particular pollutants causing the impairment and the concentration of those pollutants causing the impairment relative to the water quality standard." The requirements of Subsection (4) of proposed Rule 62-303.430, Florida Administrative Code, are consistent with these statutory mandates. Proposed Rule 62-303.430, Florida Statutes, does not address waters placed on the "planning list" based upon a failure of the "biological integrity standard" set forth in Subsection (11) of Rule 62-302.530, Florida Administrative Code. Therefore, by operation of proposed Rule 62-303.400, Florida Administrative Code, waters meeting the minimum requirements for "planning list" placement based upon failure of the "biological integrity standard" (a single failure within the ten-year period preceding the "planning list" assessment) will automatically be "verified as being impaired." This is a less stringent "verification" requirement than the Department adopted in proposed Rule 62-303.430, Florida Administrative Code, for "verification" of waters placed on the "planning list" based upon a failed BioRecon, SCI, or LCI. While the results of BioRecons, SCIs, and LCIs are more accurate indicators of "biological impairment" than are the results of "biological integrity standard" testing, the Department's decision to make it more difficult for a water to be "verified as being impaired" if it was placed on the "planning list" based upon a failed BioRecon, SCI, or LCI (as opposed to a failure of the "biological integrity standard") is reasonably justified inasmuch as the "biological integrity standard" is one of the water quality criteria that have been established by the Department in Rule 62-302.530, Florida Administrative Code, whereas, in contrast, neither the BioRecon, SCI, nor LCI are a part of the state's water quality standards. Code Part III: Proposed Rule 62-303.440, Florida Administrative Proposed Rule 62-303.440, Florida Administrative Code, the counterpart of proposed Rule 62-303.340, Florida Administrative Code, prescribes another reasonable method, that is not statistically-based, to verify aquatic life use support impairment. It reads as follows: : Toxicity A water segment shall be verified as impaired due to surface water toxicity in the receiving water body if: the water segment was listed on the planning list based on acute toxicity data, or the water segment was listed on the planning list based on chronic toxicity data and the impairment is confirmed with a failed bioassessment that was conducted within six months of a failed chronic toxicity test. For streams, the bioassessment shall be an SCI. Following verification that a water is impaired due to toxicity, a water shall be included on the verified list if the requirements of paragraph 62-303 430(4) are met. Toxicity data collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm, shall be excluded from the assessment. However, the Department shall note for the record that the data were excluded and explain why they were excluded. Specific Authority 403.061, 403.067, FS. Law Implemented 403. 062, 403.067, FS. History -- New Pursuant to Subsections (1)(a) and (3) of proposed Rule 62-303.440, Florida Administrative Code, a water will automatically be "verified as impaired" for aquatic life use support if it was placed on the "planning list" on the basis of being "acutely toxic," provided that the data supporting such placement was "not collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm." The TAC and Department staff determined that additional testing was not necessary for "verification" under such circumstances because the end point that characterizes "acute toxicity" is so "dramatic" in terms of demonstrating impairment that it would be best to "just go ahead and put [the water] on the list with the two acute [toxicity] failures and start figuring out any potential sources of that impairment." The TAC and Department staff, however, reasonably believed that, because "chronic toxicity tests, in contrast, are measuring fairly subtle changes in a lab test organism" and there is "a very long history within the NPDES program of people questioning the results of the chronic toxicity test," before a water is "verified as being impaired" due to "chronic toxicity," the impairment should be "confirmed with a bioassessment that was conducted within six months of a failed chronic toxicity test"66 (as Subsection (1)(b) of proposed Rule 62-303.440, Florida Administrative Code, provides). It is reasonable to require that the bioassessment, in the case of a stream, be an SCI, rather than a BioRecon, because, as noted above, of the two, the former is the more comprehensive and rigorous test. The requirements of Subsection (2) of proposed Rule 62-303.440, Florida Administrative Code, are consistent with the provisions of the Subsections (3)(c) and (4) of Section 403.067, Florida Statutes. It may be difficult to identify the pollutant causing the impairment inasmuch as toxicity tests are not designed to yield such information. The rationale for excluding, in the assessment process described in proposed Rule 62-303.440, Florida Administrative Code, "data collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm" (as Subsection (3) of the proposed rule does) is the same, justifiable rationale (discussed above) supporting the exclusion of such data in the assessment of impairment under proposed Rule 62-303.420, Florida Administrative Code. Code Part III: Proposed Rule 62-303.450, Florida Administrative Proposed Rule 62-303.450, Florida Administrative Code, the counterpart of proposed Rules 62-303.350 through 62- 303.353, Florida Administrative Code, provides other reasonable ways, not based upon statistics, for waters to be "verified as [being] impaired" for aquatic life use support. It reads as follows: Interpretation of Narrative Nutrient Criteria. A water shall be placed on the verified list for impairment due to nutrients if there are sufficient data from the last five years preceding the planning list assessment combined with historical data (if needed to establish historical chlorophyll a levels or historical TSIs), to meet the data sufficiency requirements of rule 62- 303.350(2). If there are insufficient data, additional data shall be collected as needed to meet the requirements. Once these additional data are collected, the Department shall re-evaluate the data using the thresholds provided in rule 62-303.351- .353, for streams, lakes, and estuaries, respectively, or alternative, site-specific thresholds that more accurately reflect conditions beyond which an imbalance in flora or fauna occurs in the water segment. In any case, the Department shall limit its analysis to the use of data collected during the five years preceding the planning list assessment and the additional data collected in the second phase. If alternative thresholds are used for the analysis, the Department shall provide the thresholds for the record and document how the alternative threshold better represents conditions beyond which an imbalance in flora or fauna is expected to occur. If the water was listed on the planning list for nutrient enrichment based on other information indicating an imbalance in flora or fauna as provided in Rule 62-303 350(1), the Department shall verify the imbalance before placing the water on the verified list for impairment due to nutrients and shall provide documentation supporting the imbalance in flora or fauna. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The requirement of the first sentence of Subsection (1) of proposed Rule 62-303.450, Florida Administrative Code, that there be sufficient (non-historical) data (as measured against the requirements of Subsection (2) of proposed Rule 62- 303.350, Florida Administrative Code67) "from [just] the last five years preceding the planning list assessment" in order for a "nutrient impair[ed]" water to go directly from the "planning list" to the "verified list" (subject to the provisions of proposed Rules 62-303.600, 62-303.700, and 62-303.710, Florida Administrative Code) is reasonably designed to avoid listing decisions based upon outdated data not representative of the water's current conditions. According to the second and third sentences of Subsection (1) of proposed Rule 62-303.450, Florida Administrative Code, if there is not enough data from this five- year time period, the additional data needed to meet the data sufficiency requirements "will be collected" by the Department, and such additional data, along with the data "from the last five years preceding the planning list assessment," will be evaluated to determine whether one of the applicable thresholds set out in proposed Rules 62-303.351 through 62-303.353, Florida Administrative Code, or an "alternative" threshold established specifically for that water, has been met or exceeded. Deciding whether "alternative, site-specific thresholds" should be used and, if so, what they should be, will involve the exercise of the Department's "best professional judgment," as will the determination as to how, in each case the Department is presented with a water placed on the "planning list for nutrient enrichment based on other information indicating an imbalance in flora or fauna," it should go about "verify[ing] the imbalance," as the Department will be required to do by Subsection (2) of proposed Rule 62-303.450, Florida Administrative Code. In some instances, the Department will only need to thoroughly review the "other information" to "verify the imbalance." In other cases, where the "other information" is not sufficiently detailed, new "information" will need to be obtained. How the Department will proceed in a particular case will depend upon the specific circumstances of that case. Code Part III: Proposed Rule 62-303.460, Florida Administrative Proposed Rule 62-303.460, Florida Administrative Code, the counterpart of proposed Rule 62-303.360, Florida Administrative Code, establishes a reasonable means to determine whether waters should be "verified as [being] impaired" for primary contact and recreation use support. It reads as follows: Primary Contact and Recreation Use Support The Department shall review the data used by the DoH as the basis for bathing area closures, advisories or warnings and verify that the values exceeded the applicable DoH thresholds and the data meet the requirements of Chapter 62-160. If the segment is listed on the planning list based on bathing area closures, advisories, or warnings issued by a local health department or county government, closures, advisories, or warnings based on red tides, rip tides, sewer line breaks, sharks, medical wastes, hurricanes, or other factors not related to chronic discharges of pollutants shall not be included when verifying primary contact and recreation use support. The Department shall then re-evaluate the remaining data using the methodology in rule 62- 303.360(1)(c). Water segments that meet the criteria in rule 62-303.360(1)(c) shall be included on the verified list. If the water segment was listed on the planning list due to exceedances of water quality criteria for bacteriological quality, the Department shall, to the extent practical, evaluate the source of bacteriological contamination and shall verify that the impairment is due to chronic discharges of human-induced bacteriological pollutants before listing the water segment on the verified list. The Department shall take into account the proximity of municipal stormwater outfalls, septic tanks, and domestic wastewater facilities when evaluating potential sources of bacteriological pollutants. For water segments that contain municipal stormwater outfalls, the impairment documented for the segment shall be presumed to be due, at least in part, to chronic discharges of bacteriological pollutants. The Department shall then re-evaluate the data using the methodology in rule 62-303.320(1), excluding any values that are elevated solely due to wildlife. Water segments shall be included on the verified list if they meet the requirements in rule 62-303.420(6). Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The first sentence of Subsection (1) of proposed Rule 62-303.460, Florida Administrative Code, was included in the proposed rule in response to comments made by stakeholders during the rule development process that the Department would be "abdicating [its] authority" if, in determining whether a water was impaired for purposes of TMDL development, it relied solely on action taken by other governmental entities. Department staff agreed that the Department, "as the agency responsible for preparing this list," should at least "review the data used by the DoH as the basis for bathing area closures, advisories or warnings and verify that the values exceeded the applicable DoH thresholds and the data meet the requirements of Chapter 62- 160," Florida Administrative Code. The rationale for the Department not considering bathing area "closures, advisories, or warnings based on red tides, rip tides, sewer line breaks, sharks, medical wastes, hurricanes, or other factors not related to chronic discharges of pollutants . . . when verifying [impairment of] primary contact and recreation use support" (per the second sentence of Subsection (1) of proposed Rule 62-303.460, Florida Administrative Code) is the same, justifiable rationale (discussed above) supporting the exclusions of these closures, advisories, and warnings from consideration in the determination of whether a water should be placed on the "planning list" pursuant to Subsections (1)(b), (1)(c), or (1)(d) of the proposed Rule 62-303.360, Florida Administrative Code. The exclusions set forth in the second sentence of Subsection (1) of proposed Rule 62-303.460, Florida Administrative Code, will have no effect on the "information" or "data" that the Department will be able to consider under any provision in Part III of the proposed rule chapter other than Subsection (1) of proposed Rule 62-303.460. Pursuant to the third and fourth sentences of Subsection (1) of proposed Rule 62-303.460, Florida Administrative Code, after the Department determines, in accordance with the first and second sentences of this subsection of the proposed rule, what bacteriological data-based bathing area closures, advisories, and warnings should be counted, it will determine whether there were a total of at least 21 days of such closures, advisories, and warnings during a calendar year (the number required by Subsection (1)(c) of proposed Rule 62-303.360, Florida Administrative Code, for placement on the "planning list") and, if there were, it will verify the water in question as being impaired for primary contact and recreation use support. This is the only way for a water to be "verified as being impaired" based upon bathing area closures, advisories, or warnings under the proposed rule chapter. The "criteria" set forth in Subsections (1)(b) and (1)(d) of proposed Rule 62-303.360, Florida Administrative Code (unlike the criteria set forth in Subsection (1)(c) of proposed Rule 62-303.360) are not carried forward in proposed Rule 62- 303.460, Florida Administrative Code. Subsection (2) of proposed Rule 62-303.460, Florida Administrative Code, provides another way, based upon a statistical analysis of "exceedances of water quality criteria for bacteriological quality," for a water to be "verified as being impaired" for primary contact and recreation use support. It reasonably requires the Department, in determining whether such impairment exists, to use the same valid statistical methodology (discussed above) that it will use, pursuant to proposed Rule 62-303.420, Florida Administrative Code, to determine whether a water should be "verified as being impaired" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [c]riteria." Under Subsection (2) of proposed Rule 62-303.460, Florida Administrative Code, the Department, to the extent practical, will evaluate the source of an exceedance to make sure that it is "due to chronic discharges of human-induced bacteriological pollutants," and, if such evaluation reveals that the exceedance was "solely due to wildlife," the exceedance will be excluded from the calculation. While it is true that "microbial pollutants from [wildlife] do constitute a public health risk in recreational waters," the purpose of the TMDL program is to control human-induced impairment and, consequently, the Department is not required to develop TMDLs "[f]or waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution." See Section 403.067(6)(a)2., Florida Statutes. Part III: Proposed Rule 62-303.470, Florida Administrative Code Rule 62-303.470, Florida Administrative Code, the counterpart of proposed Rule 62-303.370, Florida Administrative Code, establishes a reasonable means to determine whether waters should be "verified as being impaired" for fish and shellfish consumption use support. It provides as follows: Fish and Shellfish Consumption Use Support In order to be used under this part, the Department shall review the data used by the DoH as the basis for fish consumption advisories and determine whether it meets the following requirements: the advisory is based on the statistical evaluation of fish tissue data from at least twelve fish collected from the specific water segment or water body to be listed, starting one year from the effective date of this rule the data are collected in accordance with DEP SOP FS6000 (General Biological Tissue Sampling) and FS 6200 (Finfish Tissue Sampling), which are incorporated by reference, the sampling entity has established Data Quality Objectives (DQOs) for the sampling, and the data meet the DQOs. Data collected before one year from the effective date of this rule shall substantially comply with the listed SOPs and any subsequently developed DQOs. there are sufficient data from within the last 7.5 years to support the continuation of the advisory. If the segment is listed on the planning list based on fish consumption advisories, waters with fish consumption advisories for pollutants that are no longer legally allowed to be used or discharged shall not be placed on the verified list because the TMDL will be zero for the pollutant. Waters determined to meet the requirements of this section shall be listed on the verified list. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Proposed Rule 62-303.470, Florida Administrative Code, imposes additional requirements only for those waters placed on the "planning list" based upon fish consumption advisories pursuant to Subsection (2) of proposed Rule 62- 303.370, Florida Administrative Code. Waters placed on the "planning list" pursuant to Subsections (1) and (3) of proposed Rule 62-303.370, Florida Administrative Code, are not addressed in the proposed rule (or anywhere else in Part III of the proposed rule chapter). Accordingly, as noted above, these waters will go directly from the "planning list" to the "verified list" (subject to the provisions of proposed Rules 62- 303.600, 62-303.700, and 62-303.710, Florida Administrative Code). The mere fact that a fish consumption advisory is in effect for a water will be enough for that water to qualify for placement on the "planning list" under Subsection (2) of proposed Rule 62-303.370, Florida Administrative Code. The Department will not look beyond the four corners of the advisory at this stage of the "identification of impaired surface waters" process. Proposed Rule 62-303.470, Florida Administrative Code, however, will require the Department, before including the water on the "verified list" based upon the advisory, to conduct such an inquiry and determine the adequacy of the fish tissue data supporting the initial issuance of the advisory and its continuation. Mandating that the Department engage in such an exercise as a prerequisite to verifying impairment based upon a fish consumption advisory is a provident measure in keeping with the Legislature's directive that the TMDL program be "scientifically based." Department staff's intent, in requiring (in Subsection (1)(a) of proposed Rule 62-303.470, Florida Administrative Code) that there be fish tissue data from at least 12 fish, "was to maintain the status quo" and not require any more fish tissue samples than the Department of Health presently uses to determine whether an advisory should be issued. The SOPs incorporated by reference in Subsection (1)(b) of proposed Rule 62-303.470, Florida Administrative Code, contain quality assurance requirements that are essentially the same as those that have been used "for many years" to collect the fish tissue samples upon which fish consumption advisories are based. These SOPs have yet to be incorporated in Rule Chapter 62-160, Florida Administrative Code. Data Quality Objectives are needed for sampling to be scientifically valid. There are presently no Data Quality Objectives in place for the sampling that is done in connection with the Department of Health's fish consumption advisory program. Pursuant to Subsection (1)(b) of proposed Rule 62- 303.470, Florida Administrative Code, after one year from the effective date of the proposed rule, in order for data to be considered in determining data sufficiency questions under the proposed rule, the sampling entity will have to have established Data Quality Objectives for the collection of such data and the data will have to meet, or (in the case of "data collected before one year from the effective date of this rule") substantially comply with, these Data Quality Objectives. As noted above, the majority of fish consumption advisories now in effect were issued based upon fish tissue data collected more than 7.5 years ago that has not been supplemented with updated data. It "will be a huge effort to collect additional data that's less than seven-and-a-half years old" for the waters under these advisories (and on the "planning list" as a result thereof) to determine, in accordance with Subsection (1)(c) of proposed Rule 62-303.470, Florida Administrative Code, whether the continuation of these advisories is warranted. Undertaking this "huge effort," instead of relying on data more than 7.5 years old to make these determinations, is reasonably justified because this 7.5-plus-year-old data that has already been collected may no longer be representative of the current conditions of the waters in question and it therefore is prudent to rely on more recent data. Subsection (1)(c) of proposed Rule 62-303.470, Florida Administrative Code, does not specify the amount of fish tissue data that will be needed in order for the Department to determine that there is sufficient data to "support the continuation of the advisory." The Department will need to exercise its "best professional judgment" on a case-by-case basis in making such sufficiency determinations. Part III: Proposed Rule 62-303.480, Florida Administrative Code Proposed Rule 62-303.480, Florida Administrative Code, the counterpart of proposed Rule 62-303.380, Florida Administrative Code, establishes a reasonable means to determine whether waters should be "verified as being impaired" for the protection of human health. It provides as follows: Drinking Water Use Support and Protection of Human Health If the water segment was listed on the planning list due to exceedances of a human health-based water quality criterion and there were insufficient data from the last five years preceding the planning list assessment to meet the data sufficiency requirements of section 303.320(4), additional data will be collected as needed to meet the requirements. Once these additional data are collected, the Department shall re-evaluate the data using the methodology in rule 62-303.380(2) and limit the analysis to data collected during the five years preceding the planning list assessment and the additional data collected pursuant to this paragraph (not to include data older than 7.5 years). For this analysis, the Department shall exclude any data meeting the requirements of paragraph 303.420(5). The following water segments shall be listed on the verified list: for human health-based criteria expressed as maximums, water segments that meet the requirements in rule 62-303.420(6), or for human health-based criteria expressed as annual averages, water segments that have an annual average that exceeds the applicable criterion. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Proposed Rule 62-303.480, Florida Administrative Code, imposes additional requirements only for those waters placed on the "planning list" for "assessment of the threat to human health" pursuant to Subsection (2) of proposed Rule 62- 303.380, Florida Administrative Code. Notwithstanding that proposed Rule 62-303.480, Florida Administrative Code, is entitled, "Drinking Water Use Support and Protection of Human Health," waters placed on the "planning list" for drinking water use support pursuant to Subsection (1) of proposed Rule 62- 303.380, Florida Administrative Code, are not addressed in the proposed rule (or anywhere else in Part III of the proposed rule chapter). Accordingly, as noted above, these waters will go directly from the "planning list" to the "verified list" (subject to the provisions of proposed Rules 62-303.600, 62- 303.700, and 62-303.710, Florida Administrative Code). Proposed Rule 62-303.480, Florida Administrative Code, reasonably requires the Department, in determining whether a water should be "verified as being impaired" for the protection of human health based upon exceedances of "human health-based criteria expressed as maximums," to use the same valid statistical methodology (discussed above) that it will use, pursuant to proposed Rule 62-303.420, Florida Administrative Code, to determine whether a water should be "verified as being impaired" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [c]riteria." Proposed Rule 62-303.480, Florida Administrative Code, also sets forth an appropriate method for use in determining whether a water should be "verified as being impaired" based upon exceedances of "human health-based criteria expressed as annual averages." Only one exceedance of any "human health-based criteria expressed as an annual average" will be needed for a water to be listed under the proposed rule, the same number needed under Subsection (2)(b) of proposed Rule 62-303.380, Florida Administrative Code, for a water to make the "planning list." Under proposed Rule 62-303.480, Florida Administrative Code, however, unlike under Subsection (2)(b) of proposed Rule 62-303.380, Florida Administrative Code, the data relied upon by the Department will have to meet the "data sufficiency requirements of section [62]-303.320(4)," Florida Administrative Code, and, in addition, data of the type described in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, as well as data collected more than "five years preceding the planning list assessment," will be excluded from the Department's consideration. Code Part III: Proposed Rule 62-303.500, Florida Administrative As noted above, Subsection (4) of Section 403.067, Florida Statutes, directs the Department, "[i]n association with [its preparation of an] updated list [of waters for which TMDLs will be calculated, to] establish priority rankings and schedules by which water bodies or segments will be subjected to total maximum daily load calculations." Proposed Rule 62- 303.500, Florida Administrative Code, explains how the Department will go about carrying out this statutory directive. It reads as follows: When establishing the TMDL development schedule for water segments on the verified list of impaired waters, the Department shall prioritize impaired water segments according to the severity of the impairment and the designated uses of the segment taking into account the most serious water quality problems; most valuable and threatened resources; and risk to human health and aquatic life. Impaired waters shall be prioritized as high, medium, or low priority. The following waters shall be designated high priority: Water segments where the impairment poses a threat to potable water supplies or to human health. Water segments where the impairment is due to a pollutant regulated by the CWA and the pollutant has contributed to the decline or extirpation of a federally listed threatened or endangered species, as indicated in the Federal Register listing the species. The following waters shall be designated low priority: [W]ater segments that are listed before 2010 due to fish consumption advisories for mercury (due to the current insufficient understanding of mercury cycling in the environment). Man-made canals, urban drainage ditches, and other artificial water segments that are listed only due to exceedances of the dissolved oxygen criteria. Water segments that were not on a planning list of impaired waters, but which were identified as impaired during the second phase of the watershed management approach and were included in the verified list, unless the segment meets the criteria in paragraph (2) for high priority. All segments not designated high or low priority shall be medium priority and shall be prioritized based on the following factors: the presence of Outstanding Florida Waters. the presence of water segments that fail to meet more than one designated use. the presence of water segments that exceed an applicable water quality criterion or alternative threshold with a greater than twenty-five percent exceedance frequency with a minimum of a 90 percent confidence level. the presence of water segments that exceed more than one applicable water quality criteria. administrative needs of the TMDL program, including meeting a TMDL development schedule agreed to with EPA, basin priorities related to following the Department's watershed management approach, and the number of administratively continued permits in the basin. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New It is anticipated that most waters on the Department's "updated list" will fall within the "medium priority" category. Subsections (4)(a) through (4)(e) of proposed Rule 62-303.500, Florida Administrative Code, describe those factors (including, among others, the "presence of Outstanding Florida Waters" and "the number of administratively continued permits in the basin," the latter being added "based on input from the Petitioners") that will be taken into account by the Department in prioritizing waters within this "medium priority" category; but nowhere in the proposed rule does the Department specify how much weight each factor will be given relative to the other factors. This is a matter that, in accordance with the TAC's recommendation, will be left to the "best professional judgment" of the Department. "[T]here is a lot known about mercury" and its harmful effects; however, as the Department correctly suggests in Subsection (3)(a) of proposed Rule 62-303.500, Florida Administrative Code, there is not yet a complete understanding of "mercury cycling in the environment" and how mercury works its way up the food chain. "[T]here are a series of projects that are either on the drawing board or in progress now" that, hopefully, upon their conclusion, will give the Department a better and more complete understanding of what the sources of mercury in Florida surface waters are and how mercury "cycles" in the environment and ends up in fish tissue. Until the Department has such an understanding, though, it is reasonable for waters "verified as being impaired" due to fish consumption advisories for mercury to be given a "low priority" designation for purposes of TMDL development (as the Department, in Subsection (3)(a) of proposed Rule 62-303.500, Florida Administrative Code, indicates it will). Code Part III: Proposed Rule 62-303.600, Florida Administrative As noted above, proposed Rule 62-303.600, Florida Administrative Code, like Subsection (5) of proposed Rule 62- 303.100, Florida Administrative Code, is designed to give effect to and make more specific the language in Subsection (4) of Section 403.067, Florida Statutes, that an impaired water may be listed on the Department's "updated list" of waters for which TMDLs will be calculated only "if technology-based effluent limitations and other pollution control programs under local, state, or federal authority, including Everglades restoration activities pursuant to s. 373.4592 and the National Estuary Program, which are designed to restore such waters for the pollutant of concern are not sufficient to result in attainment of applicable surface water quality standards." It reads as follows: Evaluation of Pollution Control Mechanisms Upon determining that a water body is impaired, the Department shall evaluate whether existing or proposed technology- based effluent limitations and other pollution control programs under local, state, or federal authority are sufficient to result in the attainment of applicable water quality standards. If, as a result of the factors set forth in (1), the water segment is expected to attain water quality standards in the future and is expected to make reasonable progress towards attainment of water quality standards by the time the next 303(d) list is scheduled to be submitted to EPA,[68] the segment shall not be listed on the verified list. The Department shall document the basis for its decision, noting any proposed pollution control mechanisms and expected improvements in water quality that provide reasonable assurance that the water segment will attain applicable water quality standards. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New It is beyond reasonable debate that, pursuant to Subsection (4) of Section 403.067, Florida Statutes, before the Department may include impaired waters on the "updated list" of waters for TMDLs will be calculated, it must evaluate whether "technology-based effluent limitations and other pollution control programs" are sufficient for water quality standards in these waters to be attained in the future. (To construe the statute as requiring the Department to simply look back, and not forward into the future, in conducting its mandated evaluation of "pollution control programs" would render meaningless the language in the statute directing the Department to conduct such an evaluation after having determined that these waters are impaired.69 As Mr. Joyner testified at the final hearing in explaining what led Department staff "to conclude that [the Department] should be considering future achievement of water quality standards or future implementation of such [pollution control] programs": [I]t [Subsection (4) of Section 403.067, Florida Statutes] basically requires two findings. It's impaired and these things won't fix the problem. If the "won't fix the problem" required it to be fixed right now in the present tense [to avoid listing], then it couldn't be impaired. So it would just be an illogical construction of having two requirements in the statute.) Proposed Rule 62-303.600, Florida Administrative Code, does not specify when "in the future" water quality attainment resulting from an existing or proposed "pollution control program" must be expected to occur in order for a presently impaired water to not be listed; but neither does Subsection (4) of Section 403.067, Florida Statutes, provide such specificity. Indeed, the statute's silence on the matter was the very reason that Department staff did "not set a time frame for [expected] compliance with water quality standards." Rather than "set[ting] such a time frame," Department staff took other measures "to address the open nature of the statute" and limit the discretion the Legislature granted the Department to exclude presently impaired waters from the "updated list" based upon there being pollution control programs sufficient to result in these waters attaining water quality standards in the future "for the pollutant of concern." They included language in Subsection (5) of proposed Rule 62-303.100, Florida Administrative Code, and in proposed Rule 62-303.600, Florida Administrative Code, requiring that the Department, before exercising such discretion to exclude a presently impaired water from the "updated list," have "reasonable assurance" that water quality standards will be attained and that "reasonable progress" will be made in attaining these standards within a specified time frame, to wit: "by the time the next 303(d) list is scheduled to be submitted to EPA." "Reasonable assurance" is a term that has a "long history" of use by the Department in various programs,70 including its wastewater permitting program.71 Neither sheer speculation that a pollution control program will result in future water quality attainment, nor mere promises to that effect, will be sufficient, under Subsection of proposed Rule 62-303.100, Florida Administrative Code, and proposed Rule 62-303.600, Florida Administrative Code, to exclude an impaired water from the "updated list." The Department will need to examine and analyze the specific characteristics of each impaired water, as well as the particular pollution control program in question, including its record of success and/or failure, if any, before determining (through the use of its "best professional judgment") whether there is the "reasonable assurance" required by these proposed rule provisions. How much time it will take for an impaired water to attain water quality standards will depend on various water- specific factors, including the size of the water body, the size of the watershed, and whether there are pollutants stored in the sediment. The particular circumstances of each case, therefore, will dictate what constitutes "reasonable progress72 towards attainment of water quality standards by the time the next 303(d) list is scheduled to be submitted to EPA," within the meaning of Subsection (5) of proposed Rule 62-303.100, Florida Administrative Code, and proposed Rule 62-303.600, Florida Administrative Code. Because of the case-specific factors involved in determining "reasonable assurance" and "reasonable progress," it was not practicable for Department staff to specify in Subsection (5) of proposed Rule 62-303.100, Florida Administrative Code, and in proposed Rule 62-303.600, Florida Administrative Code, exactly what would be needed to be shown in each case to establish "reasonable assurance" and "reasonable progress." At the April 26, 2001, rule adoption hearing, Department staff proposed an amendment to proposed Rule 62- 303.600, Florida Administrative, to make the proposed rule more specific by adding "a list of elements that needed to be addressed to provide reasonable assurance" and defining "reasonable progress." The amendment, which was opposed by the DACS and regulated interests, was withdrawn before being considered by the ERC because Department staff felt that is was not "quite well thought out enough," particularly insofar as it addressed the concept of "reasonable progress." Part III: Proposed Rule 62-303.700, Florida Administrative Code As noted above, proposed Rule 62-303.700, Florida Administrative Code, describes the first two phases of the "basin management cycle" and the TMDL-related events that will occur during these phases. It reads as follows: Listing Cycle The Department shall, to the extent practical, develop basin-specific verified lists of impaired waters as part of its watershed management approach, which rotates through the State's surface water basins on a five year cycle. At the end of the first phase of the cycle, which is designed to develop a preliminary assessment of the basin, the Department shall update the planning list for the basin and shall include the planning list in the status report for the basin, which will be noticed to interested parties in the basin. If the specific pollutant causing the impairment in a particular water segment is not known at the time the planning list is prepared, the list shall provide the basis for including the water segment on the planning list. In these cases, the pollutant and concentration causing the impairment shall be identified before the water segment is included on the verified list to be adopted by Secretarial Order. During the second phase of the cycle, which is designed to collect additional data on waters in the basin, interested parties shall be provided the opportunity to work with the Department to collect additional water quality data. Alternatively, interested parties may develop proposed water pollution control mechanisms that may affect the final verified list adopted by the Secretary at the end of the second phase. To ensure that data or information will be considered in the preliminary basin assessment, it must be submitted to the Department or entered into STORET or, if applicable, the DoH database no later than September 30 during the year of the assessment. Within a year of the effective date of this rule, the Department shall also prepare a planning list for the entire state. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The preference expressed in proposed Rule 62-300.700, Florida Administrative Code, for verified lists to be developed on a "basin-specific" basis "as part of the Department's watershed management approach" is consistent with the directive in the first sentence of Subsection (3)(a) of Section 403.067, Florida Statutes, that the Department conduct its TMDL assessment for the “basin in which the water body . . . is located.” Proposed Rule 62-300.700, Florida Administrative Code, carries out the mandate in the second sentence of Subsection (3)(a) of Section 403.067, Florida Statutes, that, in conducting its TMDL assessment, the Department "coordinate" with "interested parties." Furthermore, the proposed rule makes clear that parties outside the Department will have the opportunity "work with the Department to collect additional water quality data" needed to meet data sufficiency requirements. Identifying the "pollutant and concentration causing the impairment" before including a water on the "verified list," as proposed Rule 62-303.700, Florida Administrative Code, requires be done, is something the Department will need to do to comply with the directive contained in the third sentence of Subsection (4) of Section 403.067, Florida Statutes. Part III: Proposed Rule 62-303.710, Florida Administrative Code Proposed Rule 62-303.710, Florida Administrative Code, addresses the "[f]ormat of [v]erified [l]ist and [v]erified [l]ist [a]pproval." It reads as follows: The Department shall follow the methodology established in this chapter to develop basin-specific verified lists of impaired water segments. The verified list shall specify the pollutant or pollutants causing the impairment and the concentration of the pollutant(s) causing the impairment. If the water segment is listed based on water quality criteria exceedances, then the verified list shall provide the applicable criteria. However, if the listing is based on narrative or biological criteria, or impairment of other designated uses, and the water quality criteria are met, the list shall specify the concentration of the pollutant relative to the water quality criteria and explain why the numerical criterion is not adequate. For waters with exceedances of the dissolved oxygen criteria, the Department shall identify the pollutants causing or contributing to the exceedances and list both the pollutant and dissolved oxygen on the verified list. For waters impaired by nutrients, the Department shall identify whether nitrogen or phosphorus, or both, are the limiting nutrients, and specify the limiting nutrient(s) in the verified list. The verified list shall also include the priority and the schedule for TMDL development established for the water segment, as required by federal regulations. The verified list shall also note any waters that are being removed from the current planning list and any previous verified list for the basin. The verified basin-specific 303(d) list shall be approved by order of the Secretary. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The second and fourth sentences of Subsection (1) of proposed Rule 62-303.710, Florida Administrative Code, track the requirements of the third sentence of Subsection (4) and the first and second sentences of Subsection (3)(c), respectively, of Section 403.067, Florida Statutes. Furthermore, as a practical matter, a TMDL cannot be developed if the culprit pollutant is not able to be identified. Subsection (2) of proposed Rule 62-303.710, Florida Administrative Code, was included in the proposed rule because, in most instances, the Department does not consider dissolved oxygen to be a pollutant. The pollutants most frequently associated with exceedances of the dissolved oxygen criteria are nutrients (nitrogen and/or phosphorous). It is essential to identify the "limiting nutrient," as Subsection (3) of proposed Rule 62-303.710, Florida Administrative Code, requires the Department to do, inasmuch as the "limiting nutrient" is the particular pollutant for which a TMDL will be developed. Part IV: Overview Part IV of proposed Rule Chapter 62-303, Florida Administrative Code, is entitled, "Miscellaneous Provisions." It includes two proposed rules, proposed Rule 62-303.720, Florida Administrative Code, and proposed Rule 62-303.810, Florida Administrative Code. Part IV: Proposed Rule 62-303.720, Florida Administrative Code Proposed Rule 62-303.720, Florida Administrative Code, describes how waters may be removed from the "planning list" and the "verified list." The proposed rule, which is entitled, "Delisting Procedures," cites Sections 403.061 and 403.067, Florida Statutes, as its "[s]pecific [a]uthority" and Sections 403.062 and 403.067, Florida Statutes, as the "[l]aw [i]mplemented" by the proposed rule. Subsection (1) of proposed Rule 62-303.720, Florida Administrative Code, addresses the removal of waters from the "planning list." It reads as follows: Waters on planning lists developed under this Chapter that are verified to not be impaired during development of the verified list shall be removed from the State's planning list. Once a water segment is verified to not be impaired pursuant to Part III of this chapter, the data used to place the water on the planning list shall not be the sole basis for listing that water segment on future planning lists. The "removal" provisions of Subsection (1) of proposed Rule 62-303.720, Florida Administrative Code, will apply to all waters on the planning list "that are verified to not be impaired during development of the verified list," including those waters that had been placed on the "planning list" pursuant to Subsection (2) of proposed Rule 62-303.300, Florida Administrative Code, by virtue of their having been on the state's 1998 303(d) list. Waters removed from the "planning list" pursuant to Subsection (1) of proposed Rule 62-303.720, Florida Administrative Code, will be eligible to reappear on "future planning lists," but not based exclusively on "the data used to [initially] place the water on the planning list." Additional data will be needed. Subsections (2) and (3) of proposed Rule 62-303.720, Florida Administrative Code, address the removal of waters from the "verified list." They read as follows: Water segments shall be removed from the State's verified list only after completion of a TMDL for all pollutants causing impairment of the segment or upon demonstration that the water meets the water quality standard that was previously established as not being met. For waters listed due to failure to meet aquatic life use support based on water quality criteria exceedances or due to threats to human health based on exceedances of single sample water quality criteria, the water shall be delisted when: the number of exceedances of an applicable water quality criterion due to pollutant discharges is less than or equal to the number listed in Table 3 for the given sample size, with a minimum sample size of 30. This table provides the number of exceedances that indicate a maximum of a 10% exceedance frequency with a minimum of a 90% confidence level using a binomial distribution, or following implementation of pollution control activities that are expected to be sufficient to result in attainment of applicable water quality standards, evaluation of new data indicates the water no longer meets the criteria for listing established in section 62-303.420, or following demonstration that the water was inappropriately listed due to flaws in the original analysis, evaluation of available data indicates the water does not meet the criteria for listing established in section 62-303.420. New data evaluated under rule 62- 303.720(2)(a)1. must meet the following requirements: they must include samples collected during similar conditions (same seasons and general flow conditions) that the data previously used to determine impairment were collected with no more than 50% of the samples collected in any one quarter, the sample size must be a minimum of 30 samples, and the data must meet the requirements of paragraphs 62-303.320(4), (6) and (7). For waters listed due to failure to meet aquatic life use support based on biology data, the water shall be delisted when the segment passes two independent follow-up bioassessments and there have been no failed bioassessments for at least one year. The follow-up tests must meet the following requirements: For streams, the new data may be two BioRecons or any combination of BioRecons and SCIs. The bioassessments must be conducted during similar conditions (same seasons and general flow conditions) under which the previous bioassessments used to determine impairment were collected. The data must meet the requirements of Section 62-303.330(1) and (2), F.A.C. For waters listed due to failure to meet aquatic life use support based on toxicity data, the water shall be delisted when the segment passes two independent follow-up toxicity tests and there have been no failed toxicity tests for at least one year. The follow-up tests must meet the following requirements: The tests must be conducted using the same test protocols and during similar conditions (same seasons and general flow conditions) under which the previous test used to determine impairment were collected. The data must meet the requirements of rules 62-303.340(1), and the time requirements of rules 62-303.340(2) or (3). For waters listed due to fish consumption advisories, the water shall be delisted following the lifting of the advisory or when data complying with rule 62-303.470(1)(a) and (b) demonstrate that the continuation of the advisory is no longer appropriate. For waters listed due to changes in shellfish bed management classification, the water shall be delisted upon reclassification of the shellfish harvesting area to its original or higher harvesting classification. Reclassification of a water from prohibited to unclassified does not constitute a higher classification. For waters listed due to bathing area closure or advisory data, the water shall be delisted if the bathing area does not meet the listing thresholds in rule 62-303.360(1) for five consecutive years. For waters listed based on impacts to potable water supplies, the water shall be delisted when applicable water quality criteria are met as defined in rule 62- 303.380(1)(a) and when the causes resulting in higher treatment costs have been ameliorated. For waters listed based on exceedance of a human health-based annual average criterion, the water shall be delisted when the annual average concentration is less than the criterion for three consecutive years. For waters listed based on nutrient impairment, the water shall be delisted if it does not meet the listing thresholds in rule 62-303.450 for three consecutive years. For any listed water, the water shall be delisted if following a change in approved analytical procedures, criteria, or water quality standards, evaluation of available data indicates the water no longer meets the applicable criteria for listing. Table 2: Delisting Maximum number of measured exceedances allowable to DELIST with at least 90% confidence that the actual exceedance rate is less than or equal to ten percent. Sample Sizes From To Maximum # of exceedances allowable for delisting 30 37 0 38 51 1 52 64 2 65 77 3 78 90 4 91 103 5 104 115 6 116 127 7 128 139 8 140 151 9 152 163 10 164 174 11 175 186 12 187 198 13 199 209 14 210 221 15 222 232 16 233 244 17 245 255 18 256 266 19 267 278 20 279 289 21 290 300 22 301 311 23 312 323 24 324 334 25 335 345 26 346 356 27 357 367 28 368 378 29 379 389 30 390 401 31 402 412 32 413 423 33 424 434 34 435 445 35 446 456 36 457 467 37 468 478 38 479 489 39 490 500 40 Any delisting of waters from the verified list shall be approved by order of the Secretary at such time as the requirements of this section are met. Subsection (2)(a)1. of proposed rule 62-303.720, Florida Administrative Code, establishes a statistical methodology appropriate for "delisting" waters that have been listed as impaired based upon {e]xceedances of [a]quatic [l]ife- [b]ased [w]ater [q]uality [c]riteria." This "delisting" methodology" is the "equivalent" (as that term is used in Subsection (5) of Section 403.067, Florida Statutes) of the statistical methodology that will be used, pursuant to proposed Rule 62-303.420, Florida Administrative Code, to verify impairment based upon such exceedances. Both methodologies are based on the binomial model and use an "exceedance frequency" threshold of ten percent with a minimum confidence level of 90 percent. A greater minimum sample size is required under Subsection (2)(a)1. of proposed Rule 62-303.720, Florida Administrative Code, because the Department will need, thereunder, "to have at least 90 percent confidence that the actual exceedance rate is less than ten percent" "as opposed to greater than ten percent, which is a bigger range." The "calculations [reflected in the table, Table 3, which is a part of Subsection (2)(a)1. of proposed Rule 62- 303.720, Florida Administrative Code] are correct." There is nothing unreasonable about the "delisting" criteria set forth in Subsections (2)(c) and (2)(j) of proposed Rule 62-303.720, Florida Administrative Code. Subsection (2)(c) of proposed Rule 62-303.720, Florida Administrative Code, reasonably requires the Department, where waters have been "listed due to failure to meet aquatic life use support based on toxicity data" (in the form of two failed toxicity tests conducted "two weeks apart over a twelve month period"), to "delist" these waters if the Department has more recent "equivalent [toxicity] data" (in the form of two passed "follow-up toxicity tests," with no failed tests for at least twelve months) showing that the waters are not toxic. Subsection (2)(j) of proposed Rule 62-303.720, Florida Administrative Code, reasonably requires the Department to "delist" a water "following a change in approved analytical procedures" only where the change calls into question the validity and accuracy of the data that was relied upon to make the original listing determination and there is other data demonstrating that the water meets water quality standards. Code Part IV: Proposed Rule 62-303.810, Florida Administrative Proposed Rule 62-303.810, Florida Administrative Code, is entitled, "Impairment of Interstate and Tribal Waters." It reads as follows: The Department shall work with Alabama, Georgia, and federally recognized Indian Tribes in Florida to share information about their assessment methodology and share water quality data for waters that form state boundaries or flow into Florida. In cases where assessments are different for the same water body, the Department shall, to the extent practical, work with the appropriate state, Indian Tribe and EPA to determine why the assessments were different. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New
The Issue The issue in this case was whether the Respondent, City of Cape Coral (City), was entitled to an Individual Environmental Resource Permit (Permit) that would allow removal of the Chiquita Boat Lock (Lock) and associated uplands, and installation of a 165-foot linear seawall in the South Spreader Waterway in Cape Coral, Florida.
Findings Of Fact Based on the parties' stipulations and the evidence adduced at the final hearing, the following findings of fact are made: The Parties The Department is the administrative agency of the State of Florida statutorily charged with, among other things, protecting Florida's water resources. As part of the Department's performance of these duties, it administers and enforces the provisions of chapter 373, part IV, Florida Statutes, and the rules promulgated thereunder in the Florida Administrative Code. Pursuant to that authority, the Department determines whether to issue or deny applications for environmental resource permits. The City is a Florida municipality in Lee County. The City is the applicant for the Permit allowing the removal of the Lock and installation of a seawall (Project). The Project is located within the geographic boundary of the City. The South Spreader Waterway is a perimeter canal separating the City's canal system from shoreline wetlands to the west and south, which run the length of Matlacha Pass to the mouth of the Caloosahatchee River at San Carlos Bay.1/ The Association is a Florida non-profit corporation that was created in 1981. The Association was created to safeguard the interests of its members. The Association has approximately 150 members who reside in Matlacha and Matlacha Isles, Florida. A substantial number of its members have substantial interests in the use and enjoyment of waters adjacent to and surrounding Matlacha. The Association's members were particularly interested in protecting the water quality of the surface waters in the area. Matlacha is an island community located to the northwest of Cape Coral, the South Spreader Waterway, and the Lock. Matlacha is located within Matlacha Pass Aquatic Preserve. Matlacha Pass is classified as a Class II waterbody designated for shellfish propagation or harvesting, and is an Outstanding Florida Water (OFW). See Fla. Admin. Code R. 62-02.400(17)(b)36; 62-302.700(9)(h). Petitioner, Karl Deigert, is a resident and property owner in Matlacha. Mr. Deigert is the president of the Association. Mr. Deigert’s house in Matlacha is waterfront. He holds a captain’s license and has a business in which he gives sightseeing and ecological tours by boat of the waters around Matlacha. He fishes in the waters around his property and enjoys the current water quality in the area. He is concerned that removal of the Lock would have negative effects on water quality and would negatively impact the viability of his business and his enjoyment of the waters surrounding Matlacha. Petitioner, Melanie Hoff, is a resident and property owner in St. James City. St. James City is located to the southwest of Cape Coral. Ms. Hoff’s property is located within five nautical miles of the Lock. Ms. Hoff engages in various water sports and fishes in the waters around her property. She moved to the area, in part, for the favorable water quality. She is concerned that removal of the Lock would negatively impact water quality and her ability to use and enjoy waters in the area. Petitioner, Robert S. Zarranz, is a resident and property owner in Cape Coral. Mr. Zarranz’s house in Cape Coral is waterfront. He is an avid fisherman and boater. He is concerned that removal of the Lock would negatively impact water quality, and that the quality of fishing in the area would decline as a result. Petitioner, Yolanda Olsen, is a resident and property owner in Cape Coral. Ms. Olsen’s house in Cape Coral is waterfront. She enjoys watersports and birdwatching in the areas around her property. She is concerned that removal of the Lock would negatively impact water quality, and that her ability to enjoy her property and the surrounding waters would suffer as a result. Petitioner, Jessica Blanks, is a resident and property owner in Cape Coral. Ms. Blanks’ house in Cape Coral is waterfront. She is concerned that removal of the Lock would negatively impact water quality, and that her ability to enjoy her property and the surrounding waters would suffer as a result. Petitioner, Joseph Michael Hannon, is a resident and property owner in Matlacha. Mr. Hannon is a member of the Association. He enjoys boating, fishing, and kayaking in the waters surrounding Matlacha. He is concerned that removal of the Lock would negatively impact water quality, and that his ability to enjoy his property and the surrounding waters would suffer as a result. Petitioner, Debra Hall, did not appear at the final hearing and no testimony was offered regarding her standing. The Project and Vicinity The Project site is 0.47 acres. At the Lock location, the South Spreader Waterway is 200 feet wide, and includes a 125-foot wide upland area secured by two seawalls, the 20-foot wide Lock, a 32-foot wide upland area secured by one seawall, and 23 feet of mangrove wetlands. The Lock is bordered to the north by property owned by Cape Harbour Marina, LLC, and bordered to the south by mangrove wetlands owned by the state of Florida. The 125-foot wide upland area and the 20-foot wide Lock form a barrier separating the South Spreader Waterway from the Caloosahatchee River. The preponderance of the competent substantial evidence established that the South Spreader Waterway behind the Lock is not tidally influenced, but would become tidally influenced upon removal of the Lock. Joint Exhibit 1 at p. 46. The City proposes to remove the Lock and one of the seawalls, reducing the 125-foot upland area to 20 feet. The proposed future condition of the area would include 125 feet of open canal directly connecting the South Spreader Waterway with the Caloosahatchee River. Joint Exhibit 1 at p. 47. The primary purpose of the Lock's removal is to alleviate safety concerns related to boater navigation. The Project's in-water construction includes demolition and removal of the existing Lock, removal of existing fill in the 125-foot upland area, removal of existing seawalls, and construction of replacement seawalls. The City would employ Best Management Practices (BMPs) throughout the course of the Project, including sediment and erosion controls such as turbidity barriers. The turbidity barriers would be made of a material in which manatees could not become entangled. All personnel involved with the Project would be instructed about the presence of manatees. Also, temporary signs concerning manatees would be posted prior to and during all in-water project activities. History of the South Spreader Waterway In the mid-1970's, the co-trustees of Gulf American Corporation, GAC Properties Credit, Inc., and GAC Properties, Inc., (collectively GAC) filed for after-the-fact permits from the Department's predecessor agency (DER), for the large dredge and fill work project that created the canal system in Cape Coral. In 1977, DER entered into CO 15 with GAC to create the North and South Spreader Waterways and retention control systems, including barriers. The Lock was one of the barriers created in response to CO 15. The Spreader Waterways were created to restore the natural hydrology of the area affected by GAC's unauthorized dredging and filling activity. The Spreader Waterways collected and retained surface runoff waters originating from the interior of Cape Coral's canal system. The South Spreader Waterway was not designed to meet water quality standards, but instead to collect surface runoff, then allow discharge of the excess waters collected over and through the mangrove wetlands located on the western and southern borders of the South Spreader Waterway. This fresh water flow was designed to mimic the historic sheet flow through the coastal fringe of mangroves and salt marshes of the Caloosahatchee River and Matlacha Pass estuaries. The fresh water slowly discharged over the coastal fringe until it finally mixed with the more saline waters of the estuaries. The estuarine environments located west and south of the Lock require certain levels of salinity to remain healthy ecosystems. Restoring and achieving certain salinity ranges was important to restoring and preserving the coastal fringe. In 1977 GAC finalized bankruptcy proceedings and executed CO 15. CO 15 required GAC to relinquish to the state of Florida the mangrove wetlands it owned on the western and southern borders of the South Spreader Waterway. This land grant was dedicated by a warranty deed executed in 1977 between GAC and the state of Florida. The Petitioners' expert, Kevin Erwin, worked as an environmental specialist for DER prior to and during the construction of the Spreader Waterways. Mr. Erwin was DER's main representative who worked with the GAC co-trustees to resolve the massive dredge and fill violation and design a system to restore the natural hydrology of the area. Mr. Erwin testified that the Lock was designed to assist in retention of fresh water in the South Spreader Waterway. The fresh water would be retained, slowed down, and allowed to slowly sheet flow over and through the coastal fringe. Mr. Erwin also testified that the South Spreader Waterway was not designed to allow direct tidal exchange with the Caloosahatchee River. In Mr. Erwin's opinion, the South Spreader Waterway appeared to be functioning today in the same manner as originally intended. Breaches and Exchange of Waters The Department's second amended notice of intent for the Project, stated that the Project was not expected to contribute to current water quality violations, because water in the South Spreader Waterway was already being exchanged with Matlacha Pass and the Caloosahatchee River through breaches and direct tidal flow. This second amended notice of intent removed all references to mitigation projects that would provide a net improvement in water quality as part of the regulatory basis for issuance of the permit. See Joint Exhibit 1 at pp. 326-333. The Department's witnesses testified that waters within the South Spreader Waterway currently mix with waters of the Caloosahatchee River when the Lock remains open during incoming and slack tides. A Department permit allowed the Lock to remain open during incoming and slack tides. Department witness, Megan Mills, the permitting program administrator, testified that she could not remember the exact date that permit was issued, but that it had been "a couple years." The location of breaches in the western and southern banks of the South Spreader Waterway was documented on another permit's drawings and pictures for a project titled "Cape Coral Spreader Waterway Restoration." See Cape Coral Ex. 9. Those documents located three breaches for repair and restoration identified as Breach 16A, Breach 16B, and Breach 20. The modeling reports and discussion that support the City's application showed these three breaches connect to Matlacha Pass Aquatic Preserve. Breach 20 was described as a connected tidal creek. Breach 16A and 16B were described as allowing water movement between Matlacha Pass and the South Spreader Waterway only when relatively high water elevations occurred in Matlacha Pass or in the South Spreader Waterway. The Department's water quality explanation of "mixing," was rather simplistic, and did not consider that the waterbody in which the Project would occur has three direct connections with an OFW that is a Class II waters designated for shellfish propagation or harvesting. Such a consideration would require the Department to determine whether to apply the OFW permitting standards, and the Class II waters permitting criteria in section 10.2.5 of the Environmental Resource Permit Applicant's Handbook, Volume I. See Fla. Admin Code R. 62-330.302(1)(a); 62-4.242(2); and 62-302.400(17)(b)36. The Caloosahatchee River, at its entrance to the South Spreader Waterway, is a Class III waters restricted for shellfish harvesting. The mouth of the Caloosahatchee River is San Carlos Bay, which is a Class II waters restricted for shellfish harvesting. There was no evidence that the Department's regulatory analysis considered that the waterbody in which the Project would occur directly connects to Class III waters that are restricted for shellfish harvesting, and is in close proximity to Class II waters that are restricted for shellfish harvesting. See Fla. Admin. Code R. 62-302.400(17)(b)36. and 62-330.302(1)(c).2/ Total Nitrogen The City's expert, Anthony Janicki, Ph.D., testified that nitrogen concentrations in the Caloosahatchee River were higher than in the South Spreader Waterway in the years 2017 and 2018. Thus, he opined that if the Lock is removed, water from the South Spreader Waterway would not negatively impact the Caloosahatchee River. However, the City's application was supported by an analysis, with more than a decade of monitoring data, which showed nitrogen concentration values were comparable inside the South Spreader Waterway and in the Caloosahatchee River. Dr. Janicki also used the Department's Hydrologic Simulation Program – FORTRAN (HSPF) watershed model to estimate the Total Nitrogen (TN) loading that would enter the Caloosahatchee River through the Chiquita Lock. Dr. Janicki estimated that TN loading to the Caloosahatchee River, after removal of the Chiquita Lock, would amount to 30,746 pounds per year. The Caloosahatchee River is listed as impaired for nutrients and has a TN Total Maximum Daily Load (TMDL) that was set by the Department in 2009. Dr. Janicki opined that removing the Lock would not result in adverse impacts to the surrounding environment. But the Petitioners obtained his concession that his opinion was dependent on the City's completion of additional water quality enhancement projects in the future as part of its obligations under the Caloosahatchee Estuary Basin Management Action Plan (BMAP) for achieving the TN TMDL. Dr. Janicki additionally testified that the potential TN loading to the Caloosahatchee River did not anticipate an actual impact to the River's water quality because the TN loads from the South Spreader Waterway were already factored into the 2009 TMDL. He essentially testified that the Lock's removal was anticipated and was factored into the model when the TMDL was established in 2009. Thus, the Petitioners proved by a preponderance of the competent and substantial evidence that the Department and the City were not aligned regarding how the City's application would provide reasonable assurances of meeting applicable water quality standards. The Petitioners proved by a preponderance of the competent and substantial evidence that the City relied on future projects to provide reasonable assurance that the removal of the Lock would not cause or contribute to violations of water quality standards in the Caloosahatchee River and the Matlacha Pass Aquatic Preserve. The Petitioners proved by a preponderance of the competent and substantial evidence that the Department relied on a simplistic exchange of waters to determine that removal of the Lock would not cause or contribute to violations of water quality standards in the Caloosahatchee River and the Matlacha Pass Aquatic Preserve. Water Quantity and Salinity The engineering report that supports the City's application stated that when the Lock is removed, the South Spreader Waterway behind the Lock will become tidally influenced. With the Lock removed, the volume of daily water fluxes for the South Spreader Waterway would increase from zero cubic meters per day to 63,645 cubic meters per day. At the location of Breach 20, with the Lock removed, the volume of daily water fluxes would drastically decrease from 49,644 cubic meters per day to eight cubic meters per day. Dr. Janicki testified that Breach 20 was connected to a remnant tidal creek that meanders and eventually empties into an embayment. The evidence demonstrated that the embayment is Punta Blanca Bay, which is part of the Matlacha Pass Aquatic Preserve. Dr. Janicki opined that Breach 20 was an area of erosion risk and sediment transport into downstream mangroves that would be significantly reduced by removing the Lock. He explained that the reductions in flow would result in reductions in velocities through Breach 20 and in the South Spreader Waterway itself. Mr. Erwin testified that Breach 20 was not a "breach."3/ He described it as the location of a perpendicular intersection of the South Spreader Waterway with a small tidal creek, which connected to a tidal pond further back in the mangroves. Mr. Erwin testified that an "engineered sandbag concrete structure" was built at the shallow opening to limit the amount of flow into and out of this tidal creek system. But it was also designed to make sure that the tidal creek system "continued to get some amount of water." As found above, Lock removal would drastically reduce the volume of daily water fluxes into and out of Breach 20's tidal creek system. Mr. Erwin also testified that any issues with velocities or erosion would be exemplified by bed lowering, siltation, and stressed mangroves. He persuasively testified, however, that there was no such evidence of erosion and there were "a lot of real healthy mangroves." Mr. Erwin opined that removal of the Lock would cause the South Spreader Waterway to go from a closed, mostly fresh water system, to a tidal saline system. He described the current salinity level in the South Spreader Waterway to be low enough to support low salinity vegetation and not high enough to support marine organisms like barnacles and oysters. The City's application actually supports this opinion. Using the Environmental Fluid Dynamics Code (EFDC) model developed by Dr. Janicki for this Lock removal project, comparisons were made describing the salinity distribution within the South Spreader Waterway. The model was run with and without the Lock, for both a wet and dry year. Dr. Janicki testified, and the model showed, that removal of the Lock would result in increased salinity above the Lock and decreased salinity downstream of the Lock. However, he generally opined that the distribution of salinities was well within the normal ranges seen in this area. The City's application also concluded that the resultant salinities did not fall outside the preferred salinity ranges for seagrasses, oysters, and a wide variety of fish taxa. However, Dr. Janicki did not address specific changes in vegetation and encroachment of marine organisms that would occur with the increase in salinity within the South Spreader Waterway. Secondary Impacts to the Mangrove Wetlands Mr. Erwin testified that the mangroves located on the western and southern borders of the South Spreader Waterway are currently in very good health. He additionally testified that loss of the current fresh water hydraulic head and an increase in salinity within the South Spreader Waterway would negatively impact the health of the mangrove wetlands. In addition, the City's application stated that removing the Lock would result in a drop in the water level of one to one and a half feet within the South Spreader Waterway. Mr. Erwin credibly and persuasively testified that a drop in water level of only a few inches would have negative effects on the health of mangroves, and that a drop of a foot could result in substantial mangrove die-off. Mr. Erwin testified that the mangrove wetlands adjacent to the South Spreader Waterway consist of a variety of plants and algae in addition to mangroves. He described the wetlands as a mangrove community made up of different types of mangroves, and epiphytic vegetation such as marine algae. This mangrove community provides habitat for a "wide range of invertebrates." He further testified that these plants and algae uptake and transform the nutrients that flow over and through the mangrove wetlands before they reach the receiving waters. Thus, the mangrove wetlands on the western and southern borders of the South Spreader Waterway serve to filter nutrients out of the water discharged from the Waterway before it reaches Matlacha Pass and the Caloosahatchee River. Mr. Erwin's credible and persuasive testimony was contrary to the City's contention that Lock removal would not result in adverse impacts to the mangrove wetlands adjacent to the South Spreader Waterway. The City and the Department failed to provide reasonable assurances that removing the Lock would not have adverse secondary impacts to the health of the mangrove wetlands community adjacent to the South Spreader Waterway. Impacts to Fish and Wildlife, Including Endangered and Threatened Species The Florida Fish and Wildlife Conservation Commission (FWC) reviewed the City's application and determined that if BMPs for in-water work were employed during construction, no significant adverse impacts on fish and wildlife were expected. For example, temporary signs concerning manatees would be posted prior to and during all in-water project activities, and all personnel would be instructed about the presence of manatees. The FWC determination only addressed direct impacts during in-water construction work. The City's application contained supporting material that identified the major change resulting from removal of the Lock that may influence fish and wildlife in the vicinity of the Project, was the opportunity for movement to or from the South Spreader Waterway canal system. Threatened and endangered species of concern in the area included the Florida manatee and the smalltooth sawfish. The City's application stated that literature review showed the smalltooth sawfish and the Florida manatee utilized non-main-stem habitats, such as sea-wall lined canals, off the Caloosahatchee River. The City cited studies from 2011 and 2013, which showed that non-main-stem habitats were important thermal refuges during the winter, and part of the overall nursery area for smalltooth sawfish. The City concluded that removal of the Lock "would not be adverse, and would instead result in increased areas of useable habitat by the species." However, the Petitioner's expert witness, John Cassani, who is the Calusa Waterkeeper, testified that there is a smalltooth sawfish exclusion zone downstream of the Lock. He testified that the exclusion zone is a pupping area for smalltooth sawfish, and that rapid salinity fluctuations could negatively impact their habitat. The City also concluded that any impacts to the Florida manatee would not be adverse, "and would instead result in increased areas of useable habitat by the species, as well as a reduction in risk of entrapment or crushing in a canal lock system." At the same time, the City acknowledged that "watercraft collision is a primary anthropogenic threat to manatees." The City's literature review included a regional assessment by FWC's Fish and Wildlife Research Institute (FWRI) from 2006. Overall, the FWRI report concluded that the mouth of the Caloosahatchee River, at San Carlos Bay, was a "hot spot" for boat traffic coinciding with the shift and dispersal of manatees from winter refugia. The result was a "high risk of manatee- motorboat collisions." In addition, testimony adduced at the hearing from an 18-year employee of Cape Harbour Marina, Mr. Frank Muto, was that Lock removal would result in novice boaters increasing their speed, ignoring the no-wake and slow-speed zones, and presenting "a bigger hazard than the [L]ock ever has." Boater Navigation Concerns Oliver Clarke was the City’s principal engineer during the application process, and signed the application as the City's authorized agent. Mr. Clarke testified that he has witnessed boater congestion at the Lock. He also testified that lack of boating experience and weather concerns can exacerbate the boater congestion issues at the Lock. Petitioners presented the testimony of Mr. Frank Muto, the general manager of Cape Harbour Marina. Mr. Muto has been at the Cape Harbour Marina for 18 years. The marina has 78 docks on three finger piers along with transient spots. The marina is not currently subject to tidal flows and its water depth is between six and a half and seven and a half feet. He testified that they currently have at least 28 boats that maintain a draft of between four and a half and six feet of water. If the water depth got below four feet, those customers would not want to remain at the marina. Mr. Muto further testified that the Lock was in place when the marina was built, and the marina and docks were designed for an area with no tidal flow. Mr. Muto also testified that he has witnessed several boating safety incidents in and around the Lock. He testified that he would attribute almost all of those incidents to novice boaters who lack knowledge of proper boating operations and locking procedures. Mr. Muto additionally testified that there is law enforcement presence at the Lock twenty-four hours a day, including FWC marine patrol and the City's marine patrol.
Conclusions For Petitioners: J. Michael Hannon, Qualified Representative 2721 Clyde Street Matlacha, Florida 33993 John S. Turner, Esquire Peterson Law Group Post Office Box 670 Fort Myers, Florida 33902 For Respondent City of Cape Coral: Craig D. Varn, Esquire Amy Wells Brennan, Esquire Manson Bolves Donaldson Varn, P.A. 106 East College Avenue, Suite 820 Tallahassee, Florida 32301 Steven D. Griffin City of Cape Coral Assistant City Attorney Post Office Box 150027 Cape Coral, Florida 33915-0027 For Respondent Department of Environmental Protection: Kirk Sanders White, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: The Department of Environmental Protection enter a final order denying Individual Environmental Resource Permit Number 244816-005 to the City of Cape Coral for removal of the Chiquita Boat Lock. The final order deny Petitioners' request for an award of attorney's fees and costs. DONE AND ENTERED this 12th day of December, 2019, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2019.
Findings Of Fact The applicant currently operates a 58 slip marina Village at the proposed site, which was constructed under a modified permit from the Department in 1980 by Sunset Realty. Subsequent to that construction, the Petitioner commenced its Marina Village project on uplands adjacent to the existing dock facility and entered into a lease with Sunset Realty to operate the present marina as part of its "Boca Grande Club." The operative portion of the existing marina, that is, where boats are moored and operate, is in water eight feet or greater in depth. The marina provides fuel service at a separate fuel dock as well as electric and telephone service at the individual slips, thus permitting boats using the slips to hook up to on- shore electrical and telephone service. Sewage pump-out equipment is available at the fuel dock and a portable sewage pumping facility is available to be moved to each slip as necessary. Boca Grande Club employs a full time dock master who lives aboard a boat at the existing facility. The facility presently generally serves larger craft, that is, boats generally larger than 25 feet in length and serves some vessels in excess of 60 feet in length. The marina village portion of Boca Grande Club is a condominium, residential development, which is nearly completed and will consist of 48 residential units. A second portion of the Boca Grande Club is located on the Gulf of Mexico some 2,000 feet away from the marina village. The entire project employs slightly more than 100 people. The Petitioner contends that the existing marina of 58 slips is not sufficient to provide adequate dock space for the residents of the development, as well as members of Boca Grande Club. It also contends that the existing dock elevations are such as to make access from small boats to the dock difficult. The number of residents or club members requiring boat slips was not established, nor was it shown that efforts to modify existing dock elevations have been attempted unsuccessfully. In any event, the Petitioner applied to the Department on February 15, 1985, to construct the approximate 3450 square feet of additional dock facility. This would include a "T" shaped structure with an access ramp or walkway extending approximately 189 feet toward the existing channel from the shore. The waterward "T" portion will be 237 feet ~n length. Additionally,. an "L" shaped structure with two sections, each approximately 75 feet in length, would be constructed which would accommodate six boat slips. The "T" shaped dock will accommodate 19 boat slips at its waterward end. The docks proposed will contain ten 3' X 15' finger piers with regard to the "T" shaped dock and two 3' X 15' finger piers attached to the "L" shaped dock. The applicant would install 42 mooring pilings in the bottom of Gasparilla Sound for the mooring of boats using the docks. Thus, the applicant proposes the addition of approximately 25 boat slips with the proposed docks, all of which will be located within Gasparilla Sound, in the Charlotte Harbor Aquatic Preserve, an Outstanding Florida Water (OFW). This is a Class II water body pursuant to Chapter 17-3, Florida Administrative Code, and has also been designated an outstanding Florida water, pursuant to Rule 17-3.041, Florida Administrative Code. The docking facility will be located in an area vegetated by sea grass, including turtle grass and associated algae. The access ramp for the "T" dock would be through a mangrove fringe including red, white and black mangroves. The Department's appraisal recommended denial of the application unless certain modifications to the "T" shaped dock are accomplished, including omitting the "T" shaped docking structure or relocating it to an area without grass beds; that the pilings should be driven into place rather than placed in augured holes; that turbidity screens should be installed and staked around the proposed piling site and that no boats over 25 feet in length or equipped with heads or toilets should be allowed to moor at the docking facility, nor should boats be permitted with people living aboard them. On September 5, 1985, the Respondent issued its Intent to Deny indicating that the project was expected to violate water quality standards and that the construction of the dock and the presence of the moored boats attendant to use of the dock would lower existing water quality in terms of turbidity, biological integrity, bacteriological quality, especially as to fecal coliform and total coliform bacteria and based upon the DER's position that the "T" shaped dock would not clearly be in the public interest in several respects. The Department has no objection and proposes to issue a permit for construction of the smaller, "L" shaped dock. In response to the Intent to Deny, the Petitioner resurveyed the seagrasses in the area and located a site where the water depths sloped to deeper water and seagrasses were sparser. It modified its application, moving the waterward extension of the dock over the deeper water in the less dense seagrasses, but could not move the dock to a location to avoid seagrass since to do so would not allow maneuvering room for larger boats utilizing the existing dock. The applicant agreed to the other suggestions of modification by the Respondent. Thus, the applicant subsequently modified the application to include "bow-in" mooring of boats so as to place boat propellors over the deepest possible waters at the mooring site, as well as raising the central portion of the access ramp leading waterward from the shore, to provide for greater light penetration and less shading of seagrasses, as well as narrowing the dock to five feet in width where it passes through the mangrove fringe, so as to limit alteration of the mangroves at the site to only three trees. The Department continues to take the position that the permit should be denied, however, on the basis that the construction of the dock and the presence of the boats attendant to the dock will lower existing water quality in terms of the above particulars and based upon the DER's evaluation that the "T" shaped dock will not clearly be in the public interest. AMBIENT WATER QUALITY The Petitioner tendered C. W. Sheffield, professional engineer, and Dr. Martin Roessler as experts in the field of water quality and they were accepted without objection. The respondent tendered the expert testimony of Mr. Doug Frye and William Porter, respectively a dredge and fill specialist and supervisor and an environmental specialist with the Shellfish Monitoring Program for the Department of Natural Resources, who were accepted as expert witnesses in the areas of water quality and, with regard to Mr. Porter, the impacts of water quality on shellfish. It was thus established that the ambient water quality in the cove which contains the present marina and where the proposed docking facilities would be is generally good. The water meets all relevant State regulatory standards with the exception of fecal coliform and total coliform bacteriological standards for Class II waters. In that regard, repetitive samples have shown violations of the fecal coliform and total coliform bacteriological standards for Class II waters on a number of occasions. The data relied upon concerning fecal coliform organism levels at the project site was collected and analyzed over approximately a one year period during which time the samples were shown to contain fecal coliform and total coliform bacteria in violative concentrations a number of times. Marinas are known discharge sources for fecal coliform organisms. This is especially true of moored boats in marinas which often have toilets or heads which are illegally flushed into the State waters within the marina. The presence of moored boats with heads are known discharge sources of fecal coliform organisms and the boats utilizing the present marina and the proposed project do, and likely will, have toilets on board, which can be improperly discharged into the waters of the marina. This marina has been established to be a source of discharge of fecal coliform organisms in violation of the relevant standard for Class II waters of the State. There presently exists relatively high levels of fecal coliform organisms ranging up to 50 organisms per 100 milliliters of water in the area of the existing marina. This level of concentration exceeds the regulatory standard for fecal coliform bacteria in the Class II water quality rules. Although Mr. Porter discussed the possibility that high levels of coliform bacteria could be caused by birds or animals depositing fecal material in the water, he established that the likely source of elevated levels of this bacteria was improper operation of heads aboard boats, as pointed out by the fact that samples taken in other areas of the Gasparilla Sound away from marina sites do not exhibit the high coliform levels found on repeated occasions at the subject site. Thus, it has been established that the ambient water quality is within State standards for all parameters with the exception of fecal and total coliform bacteria for Class II waters. The Petitioner contends that Class III water standards are appropriately applied herein inasmuch as the Department placed the Class III standards rather than the Class II standards at issue in its Intent to Deny, albeit mistakenly. There is no question, however, that there are Class II waters of the State involved at this site and the subject area is within the aquatic preserve and outstanding Florida waters. The Petitioner is charged with knowledge of this inasmuch as the aquatic preserve boundaries are delimited in the Department's above-cited, published rule. In preparing and processing its application and electing to proceed with this project, the Petitioner is charged with knowledge that these are Class II waters and that the water quality criteria and considerations applicable to Class II outstanding Florida waters are the appropriate parameters with which it must comply. In any event, this is a de novo proceeding and the Department's initial position with regard to this application is not binding in favor of or to the prejudice of any party to the Section 120.57(1), Florida Statutes proceeding. IMPACT ON BENTHIC COMMUNITY ·9. There is a moderate stand of seagrass at the proposed site of the "T" portion of the dock or waterward end of the dock, with dense seagrass beds existing toward the shore, over which the narrower walkway portion of the dock will traverse. Seagrass beds are an especially productive marine community which contribute greatly to the biological diversity in surrounding waters because of their important function in the marine food chain. That function is involved with the seagrasses production of detrital matter consisting of seeds and vegetative material which marine organisms feed upon and upon which organisms larger fish, including commercial and sport fish species, feed upon. Potential adverse impacts caused by a project of this type on the Benthic Community at the project site and especially the seagrass beds involve the potential shading of seagrasses caused by the location of the dock over them, as well as the mooring of boats over them which shading retards or eliminates photosynthesis, which ultimately can kill the seagrass and thus reduce marine productivity in the area. The concentration of boats at such a mooring site as the end of this "T" dock will concentrate the effects of prop scouring, washing and prop dredging, which will have a destructive effect on seagrasses as well as the settling out of sediment from propellor wash or disturbance of the bottom on the seagrasses which can ultimately smother them as well as other marine life forms. In discussing these considerations, it should be pointed out that the "T" portion of the dock would be oriented in a general north-south direction which causes the shadow of the dock to move rapidly as the sun passes overhead in a general east to west direction. This would tend to minimize the effect of shading on the seagrass of the dock itself, particularly with regard to the approach ramp portion of the dock which is relatively narrow. That portion of the dock extending toward the shore runs in an east to west direction and would not exhibit the same rapidly moving shadow, but the central portion of the approach walkway has been elevated to such an extent that light reaching under the dock from both sides will be sufficient to allow photosynthesis of the seagrasses under the dock, although not for as long a period of the day nor at the same rate as would be the case if the dock were not present. The Petitioner asserts that its voluntary relocation of the "T" shaped portion of the dock from an area of dense sea grass to a moderately populated sea grass bed plus the proposed bow-in mooring of boats so as to alleviate propellor damage to the seagrass, together with its view concerning the prevailing water depth at the end of the dock, will serve to prevent damage to the seagrass at the end of the "T" dock where the boats will be moored. It has been shown, however, that the mooring of boats whether bow-in or otherwise will still create a significant amount of shading of the bottom which, together with the shading caused by the "T" dock as well as the associated finger piers will retard or prevent photosynthesis to some extent, especially where boats are moored for days at a time without moving. This will significantly reduce the marine productivity attributable to the seagrass by retarding its natural function or, in some cases, killing it with the resultant loss of the detrital production as well as carbon production, the former being crucial to the proper functioning of the marine food chain in the area. If the seagrass is damaged or extinguished by the shading effect, prop scouring and washing, and/or settlement of turbidity on the seagrass, or a combination of these factors, not only will its productivity be lost, but the biological diversity of marine life in the area will be reduced as it relates to those vertebrate and invertebrate marine animals which depend on seagrass as a food source either directly or indirectly. Dr. Roessler, for the Petitioner, opined that the attached biological communities or "fouling" organisms such as barnacles which would form on the dock pilings, if they were installed, would provide habitat for marine life and invertebrates and thus enhance the biological diversity of the area. These fouling organisms which attach to pilings, however, represent a very narrow portion of the potential marine biological diversity of life forms in an area such as this. Their advent on the pilings, should the pilings be installed, would not mitigate for the loss of important marine habitat and resultant species diversity that elimination of this portion of the seagrass beds would pose. Thus, reasonable assurances have not been established that significant adverse impact to the Benthic Community in the form of damage or elimination of the seagrass beds and their dependent biota will not occur due to shading and propellor scouring, dredging and washing occasioned by the installation of the docking facility. Respondent's expert witnesses Sheftal, Barth, and Dentzau uniformly expressed a concern for propellor scarring, dredging and prop washing of the seagrass beds caused by an improper operation of boats in the project area where water is too shallow over the grass beds to protect them from the resultant propellor damage. In this regard, the Petitioner's own experiments with actual boats indicated that approximately one to 1 1/2 feet of water will remain between the bottom of the sound and the boat propellors at the end of the "T" dock for the general type and size of boats which will use the dock, even assuming that the boats are moored bow inward, thus taking maximum advantage of the deepest water possible under the propellors when a boat engine is started. Respondent's witness Dentzau performed a test with a 21 foot boat with an approximately 100 horsepower outboard engine running it in both forward and reverse at the "T" end of the dock. He was able to readily generate a "plume" of turbidity consisting of sand and other bottom material suspended in the water by the scouring action of the propellor. Although it was demonstrated for water quality parameter considerations that this turbidity plume did not violate the water quality standards for turbidity, it obviously shows that over time the turbidity suspended by boat propellors will settle on the seagrasses and other bottom dwelling biota to their detriment and, more immediately important, demonstrates that prop washing and scouring will occur by boats even if moored bow-in at the presently proposed site of the "T" shaped portion of the dock. The Petitioner proposes by the configuration of its "L" shaped dock in conjunction with the IT" shaped dock, as well as with buoy lines, to keep boat traffic away from the dense grass beds surrounding the proposed dock site and over which the walkway will extend. The Petitioner will mark the entrance channel to the marina itself to keep boats from straying over adjacent grass beds. It has not been demonstrated, however, what steps can be taken to effectively prevent boats from approaching the side of the proposed dock around the ends of the buoy lines and over the dense grass beds toward prohibitively shallow water where prop scouring and scarring will occur. Further, although the Petitioner will mark the entrance channel to the marina itself to keep boats from straying over adjacent dense grass beds, the likelihood of propellor damage to the grass beds in the vicinity of the end of the "T" dock has been exacerbated by the concentration of boat traffic which will result by installation of that dock, over waters at the mooring site which are of insufficient depth to protect the grass bed at that location from scouring and washing from boat propellors. In view of these reasons, significant adverse impacts to the Benthic Communities and especially to the grass beds themselves will result by installation of the docking facility at the site proposed, primarily because of insufficient water depth for safe operation of boats in relation to the well-being of the grass beds in the vicinity of the end of the dock and because of the shading which will result by installation of the "T" shaped portion of the dock in conjunction with the boats to be moored to it and the finger piers between the boat slips attached to it. WATER QUALITY The Respondent, through its water quality expert witness, Doug Frye, expressed the concern that the proposed project would violate Rule 17-3.051, Florida Administrative Code, which requires that the State's waters be free from pollutants above a certain level measured by various accepted and codified scientific methods of measurement. In this regard, the primary concern of the Department is bacteriological quality as well as turbidity resulting from boat operation. The turbidity standards contained in the above Rule provides that State waters not exceed 29 nephelometric turbidity units above the natural background level. The Respondent contends that this level will be exceeded as a result of operation of boats in the vicinity of the dock. The Petitioner, however, presented a soils analysis and silt settling study which showed that bottom materials in the area involved consist of sand, with some finely pulverized shell and that this material settles very rapidly after being disturbed with little silt remaining in suspension a significant period of time after the disturbance. This is primarily because the level of organics in the bottom substrate is very low at this site. In this connection, the Petitioner's expert witness, Mr. Sheffield, anchored a 16 foot boat with a 40 horsepower outboard motor in the docking area of the proposed project. He operated the boat at 1,000 RPM for an extended period of time while measuring the resultant turbidity. The results of his measurements showed turbidity to be in the range of 5-11 NTUs. The Respondent's witnesses, however, operated a larger 21 foot boat at the location of the "T" shaped portion of the dock maneuvering it back and forth with a fairly large outboard motor in the 100 horsepower class, which might be presumed to be typical of the boats which will be using the proposed facility. The maneuvering of the boat with the larger engine in this shallow water created a clearly visible plume of turbidity shown by photographs introduced into evidence by the Respondent. In fact, however, although the turbidity plume was clearly visible, the Respondent's own direct measurement of turbidity taken from within the plume immediately after it was generated was 23.8 NTUs, still below the State standards for violations as to turbidity. The existing marina facility has a fuel dock and has adopted a fuel spill contingency plan. There will be no fueling of boats nor fuel kept at the proposed docks. Nevertheless, marinas were established to be a known source of discharge of oils and greases and the presence of more boats utilizing all the dock facilities, especially during fueling and maintenance procedures, will result in additional oils and greases being deposited in the water. Even if there is no fueling facility planned for the proposed docks, the additional boats represented by the 25 additional slips sought to be approved will have to be fueled and likely at the existing facility. This will heighten the risk of fuel, oil and grease spills. In this regard, it must be remembered that the present marina and the proposed docking facilities are in outstanding Florida waters in which no degradation of ambient water quality is permitted. In this context then, the Petitioner/Applicant has, not provided reasonable assurances that pollution levels for oils and greases will not increase as a result of the potential addition of 25 boats to this marina facility. A substantial issue has been raised in this proceeding concerning water quality as it relates to the bacteriological standard. It has been established that this marina is presently a source of discharge of fecal coliform organisms which frequently are present in sufficient concentrations so as to violate the standard for that organism for Class II waters. Fecal coliform bacteria are accumulated in the bodies of shellfish. The shellfish themselves are not harmed, but contaminated shellfish can accumulate concentrations of as much as 100 times the ambient fecal coliform bacterial levels present in the waters they inhabit. Fecal coliform bacteria can cause extreme illness in human beings, sometimes even paralysis and death. Fecal coliform bacteria in State waters results from the deposition therein of human or animal waste. The Petitioner maintains a sewage pumpout station located at its fuel dock with a direct connection to its sanitary upland sewer system, as well as a portable sewage pump that can be moved to each boat slip for pumping out of toilets or "heads" on boats. Upland fish cleaning stations will additionally be provided with the proposed docks so as to prevent refuse from fish cleaning activities being deposited into the waters of the cove. The fact remains, however, that there presently exist high levels of fecal coliform organisms in the waters of the cove at the marina site, in the above noted violative concentrations on repetitive occasions. The presence of boats moored in the marina with "heads" aboard are a known discharge source of fecal coliform organisms. The Petitioner proposes to restrict boats using the facility to those boats without marine heads aboard or requiring those with heads to keep them locked or otherwise not discharge them into the waters of the marina. If boats utilizing the marina have toilets aboard, however, there is a substantial likelihood that at some point those toilets will be discharged into the waters of the cove before any of the Petitioner's monitoring personnel are aware of it. The problem is thus one of enforcement. In this regard, it is established that even with the sewage pumpout station and the portable sewage pumpout device, that there are a number of "live-aboard" boats with marine heads in the marina at the present time and customarily. This has caused the above found violations of fecal coliform, Class II water standards. Although the Petitioner proposes to restrict boats at the proposed docking facility to those less than 25 feet in length and to establish a monitoring program by the marina management personnel to assure that the boats with heads only contain heads approved by Coast Guard regulation, reasonable assurances have still not been established that the enforcement plan proposed can be effective in ensuring that no marine heads or other sources of coliform bacteria will be discharged into the waters of the cove at the project site. The plan proposed by the Petitioner simply did not ensure that boats having marine heads will not use the marina and that those persons using boats so equipped will not, on some occasions, discharge the heads into the waters of the marina at the project site nor that spills will not result in the sewage pumping-out process. The Respondent's expert witness, Mr. Porter, confirmed that most fishing boats of the open "center console" variety of 25 feet length or less do not contain marine heads, nevertheless, he established that in his experience monitoring marinas of this sort, the restrictions against marine heads of the non-approved variety and the attempted restriction against boats discharging the contents of their heads into the waters of the marina cannot be effectively enforced nor was it established that fishing boats without marine heads will be the only type of boat to use the proposed docking facilities. Accordingly, the waters of the cove at the marina site and project site are in frequent violation of the fecal coliform and total coliform parameter for Class II waters and reasonable assurances have not been provided that the fecal coliform bacterial levels will not increase as a result of the installation and operation of the proposed facility with its attendant boats. Because of the likelihood of shellfish contamination by fecal coliform bacterial levels which will likely increase if the proposed project is constructed and operated, together with the loss of marine habitat and productivity posed by the harm likely to result to the seagrass beds in the vicinity of the proposed facility due to attendant boat operation, it has been shown that the water quality parameter for biological integrity in these Outstanding Florida Waters will likely be degraded. The "Diversity Index" of marine microinvertebrates in the area of the affected seagrass beds will likely be reduced below 75 percent of background levels. Therefore, in the context discussed above, the proposed construction and operation of the 25-slip marina facility with the "T" dock will lower ambient water quality in these outstanding Florida waters and will result in violations of State water quality standards for Class II waters in the above particulars. SHELLFISH HARVESTING Mr. William Porter of the Department of Natural Resources Bureau of Shellfish Sanitation established that the cove where the project would be located is closed to the taking of shellfish as a result of the contamination or potential for contamination of shellfish by coliform bacteria contained in fecal material. His Department's water quality sampling confirmed the elevated levels of fecal coliform bacteria in the cove on repetitive occasions. This elevated level of coliform organisms was shown to result from improper operation of marine toilets upon vessels using the marina at the present time. Because of the potential for contamination from vessels discharging fecal material, Mr. Porter established that the Department would likely close an area 50 percent larger than the present shellfish harvest closure area as a result of a 50 percent increase in the number of boats capable of using the marina if the proposed project is built. Mr. Porter acknowledges that if it could be assured that boats using the marina did not contain heads, the increased area of closure might be lessened after this project were built. He also established as pointed out above that such restrictions on boats containing heads from using the proposed boat slip is very difficult to enforce. Even with the present central sewage pumpout facilities and portable pumpout equipment at the existing marina, the marina still has failed to comply with fecal and total coliform standards for Class II waters on a repetitive basis. The management of the present marina has allowed live-aboard boats at the marina even though it has posted warning signs against boat owners discharging toilets in the cove waters. Mr. Porter also acknowledged that the Boca Grande North Marina, owned by Gasparilla Pass, Inc., was recently permitted by the DER and constructed and has not yet resulted in the Department's closing an additional area to the taking of shellfish. The area the marina is situated in, however, is only "conditionally approved" for the taking of shellfish, meaning that it is subject to closer monitoring by the DNR with a view toward the possible necessity of closing waters in the area of that marina. It was not established, however, how the fecal coliform or total coliform levels in the waters adjacent to that marina compare to the existing marina or the site of the proposed docking facilities at the existing marina, nor what conditions might prevail which would render that other marina a comparable site to -be used as a relevant demonstration of what conditions might be expected at the present marina if the proposed project were built and operated. Thus it has been shown that even though the Petitioner proposes limiting the size of boats at the proposed facility and closely inspecting and regulating any marine heads on boats using the facility to make sure they comply with Coast Guard regulations, it has not been demonstrated that the additional deposition of fecal coliform bacteria in the waters often the cove will be adequately prevented by the proposed enforcement measures. It is thus reasonably likely that the construction of the proposed project will lead to the closing of an additional area of water which is presently approved for shellfish harvesting. The closure of shellfish harvesting in waters is contrary to the public interest in terms of recreational values, fishing and marine productivity and others of the seven public interest criteria quoted below. Further, the contamination of shellfish, which can cause severe illness or even death in human beings, is clearly contrary to the public interest and there is a substantial likelihood that shellfish contamination is already occurring in the area due to the characteristic of shellfish by which they accumulate or store fecal coliform organisms to reach injurious levels for human consumption even though the shellfish themselves appear to be healthy. The area of the proposed project is extensively used for commercial and recreational shellfish harvesting at the present time, outside the immediate closed waters of the marina within the cove. PUBLIC INTEREST Section 403.918(2) (a) (1-7) requires that the Petitioner provide reasonable assurances that the proposed project will be clearly in the public interest. The public interest considerations of those seven criteria concern whether the project will adversely affect public health, safety or welfare or property of others: whether it will adversely affect conservation of fish and wildlife or their habitats; whether it will adversely affect the fishing or recreational values or marine productivity in the project vicinity; whether it will be of a temporary or permanent nature; and the effect on the current condition and relative value of functions reformed by areas affected by the project. Although Petitioner's witness, Dr. Roessler, related that the attached fouling communities, such as barnacles, which would form on the proposed docks and pilings would increase the diversity of marine habitat available, that will not offset the loss of marine habitat occasioned by the increasingly detrimental effect imposed by the project and the operation of it on the seagrass beds, in the manner discussed above. The fouling communities expected by Dr. Roessler to occur on the pilings to be installed, will not provide, nor replace the value of, the detritus (seeds and leaves) produced by the seagrass which would be lost, which is an important food source for marine organisms in the upper portion of the food chain in the area, some of which organisms include fish and have a high recreational value and commercial value. The importance of detrital production by the seagrass beds outweigh the value of the addition of the fouling communities on the pilings. In fact, the total diversity of marine species actually might decline even though the fouling organisms would be added with the installation of the pilings, once the harmful effects on the seagrass beds begin to occur after installation and operation of the proposed facility and over the life of the marina. Thus, in this regard, the project is contrary to the public interest and certainly not clearly in the public interest. Additionally, there is a substantial likelihood that shellfish may be contaminated which, in turn, will have an adverse effect on the public health, safety and welfare. The harvesting of shellfish has a substantial recreational and commercial value and is an important aspect of the marine productivity in the vicinity of the project. The heightened coliform bacteria production caused by the resultant expansion of the marina will adversely affect fishing and recreational values and marine productivity and will degrade the current condition and relative values of the functions performed by the marine habitat in the vicinity of the proposed dock. Finally, there is no question that the project will be of a permanent nature. The various detrimental effects on the public interest consideration found herein are rendered more critical by the fact that there is no truly redeeming public purpose or use for this project. This will be essentially a private docking facility designed to serve the residents of the applicant's attendant real estate development. The upland development is a condominium development and the slips will be owned by the condominium owners and not open to the general public, although the Petitioner did make vague reference to an idea that some slips might be rented to members of the public. This was not established to be the case and, in any event, the primary purpose of the boat slips is to enhance the desirability of the upland development. Although the Petitioner emphasizes that the advent of the additional slips might help attract as much as $1,000,000 additional revenue to the Boca Grande area by assisting the applicant in hosting the Annual Tarpon Release Fishing Tournament, it is also true that any development in a coastal area will likely represent some economic benefit to that area, but there is also a substantial economic and recreational benefit to maintaining the outstanding Florida waters involved in an undegraded condition and maintaining the present Class II, approved shellfish harvesting area unimpaired. Thus, although the proposed docks might be used for sponsorship of the subject fishing tournament and it can be said that that would enhance fishing and recreational value to some extent, it was not established that the tournament will not occur and that the extra revenue and enhancement of fishing and recreational value it will generate will not occur in the Boca Grande area anyway. The potential detrimental effects of the proposed project, delineated above, will also decrease fishing and recreational value over many years and for the life of this project in terms of harm to the marine habitat occasioned by the constant deposition of oils, greases and fuel and coliform bacteria in the Class II waters involved, as well as the other detrimental aspects of the project discussed above. It has not been established that the economic benefits of the fishing tournament and the addition of the boat slips will not occur but for the installation of this proposed docking facility. Although it may help relieve a shortage of marina slips in the area, it was not shown that this is the only alternative to relief of that shortage. ALTERATION OF MANGROVES The original site for the access ramp or walkway to the "T" shaped portion of the dock was selected through an on site inspection conducted in part by Respondent's witness, Andrew Barth. The mangrove area is less dense at the site of the walkway's penetration of the mangrove belt than surrounding mangrove areas. Petitioner's witness, Dr. Roessler, has participated in many studies involving mangroves in South Florida. He identified each tree within the proposed dock pathway. Through narrowing of the dock walkway to five feet and the relocation agreed upon by the Petitioner and Mr. Barth, it has been established that only three mangrove trees will be removed by the construction of the dock. Thus, there will be no substantial alteration or degradation of the mangrove fringe area at the project site. DOCK CONSTRUCTION Mr. C. W. Sheffield was accepted as an expert witness in the field of marine engineering. He established that the pilings will be installed using a 6 to 8 inch chisel point driven into the bottom of the sound with an air hammer. There will be no augering or other means of excavation used which would generate a substantial amount of turbidity. The air hammer will result in compaction of sediments by forces radiating out from the piling as it is driven, with the counteracting sheer force caused by the piling installation causing a slight bulging in the bottom around each piling, but nothing more. There will be no significant movement of sediment in the water column. The construction of the dock will take place moving from the land waterward, utilizing equipment mounted on the dock. Thus, construction barges will not be required to come into the shallow grass bed area with the potential for its damage. Small barges would be used in the deeper waterward portions of the project to install the mooring pilings off-shore from the end of the "T" dock. Turbidity curtains will be used during all construction, surrounding all phases of the construction work. In Mr. Sheffield's experience, such measures have resulted in no violation of the State turbidity standards at other similar projects, and are not likely to with this one. CUMULATIVE IMPACT A number of permits have been issued by the Department for docking facilities to the north of this proposal and other facilities are already in existence. Dr. Roessler opined that the geographic location of these, as well as that of this project, in light of the numerous inlets and high degree of tidal flushing and exchange through the inlets, will not result in any adverse cumulative impact occasioned by the addition of the proposed dock with 25 slips to those already existing in the Sound. It is noteworthy that, with regard to the potential this project poses for damage to the seagrass beds and for heightened production of fecal coliform bacteria, with the environmental damage attendant thereto, no proof was offered by either party concerning those considerations or effects to the extent that they might or might not exist at other marinas or docking facilities in the Gasparilla Sound area. There has been no proof to establish any cumulative impact.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the testimony and evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered denying the subject permit application, except for that portion seeking authorization for the "L" shaped dock and six boat slips attendant thereto, which should be granted with the agreed-upon conditions and restrictions contained in the above Findings of Fact. DONE and ENTERED this 19th day of December, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1986. APPENDIX Petitioner's Proposed Findings of Fact: The rulings on the Petitioner's Proposed Findings of Fact are numbered below in the order in which they were presented (unnumbered) by the Petitioner. 1-6. Accepted Accepted, excepted for the last two sentences which are immaterial Accepted. Accepted, except as to the proffered material import of the last sentence. Accepted, except the first sentence which is not in accord with the greater weight of the evidence. Accepted, except as to the last three sentences which are not supported by preponderant evidence 12-16. Accepted. Rejected, as not in accordance with the preponderant evidence of record. Rejected as not being in accordance with the greater weight of the evidence. Accepted, but not as dispositive of any material issue presented. Accepted, except as to the last sentence which is rejected as being contrary to the preponderant evidence adduced. Accepted, except as to the third and last sentences which are rejected as being contrary to the preponderant evidence adduced. Accepted, except for the third and last two sentences which are rejected as to their purported import in the resolution of the material issues presented and as being not in accordance with the preponderant evidence adduced. Accepted. Accepted, but not as dispositive of the jurisdictional issue concerning "dredging and filling" for the reasons found in the Recommended Order. Accepted. Accepted. Respondent's Proposed Findings of Fact: 1-18. Accepted 19. Accepted, but not dispositive of any material issue presented. 20-25. Accepted. Rejected as not being a complete finding of fact. Accepted. Accepted, except as to the issue of water dept which would actually be less at the critical location involved. Accepted. Accepted, but not material. 31-31. Accepted. 35. Accepted, but not truly material in this de novo proceeding. COPIES FURNISHED: Robert A. Routa, Esquire 217 South Adams Street Tallahassee, Florida 32302-1386 Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Stephen Fox, Director Division of Environmental Permitting Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 ================================================================ =
The Issue The issue in this case is whether the portion of Consumptive Use Permit (CUP) Application Number 97106 seeking an allocation of 499,000 gallons per day (gpd) of groundwater for commercial/industrial uses (supply bulk water to bottling plants) meets the conditions for issuance as established in Section 373.223, Florida Statutes, Florida Administrative Code Rule 40C-2.301, and the Applicant’s Handbook, Consumptive Uses of Water.1 The County does not oppose or contest the portion of the CUP application authorizing use of 6.0 million gpd of surface water for limerock mining operations.
Findings Of Fact The Parties The County is a political subdivision of the State of Florida. The County operates a water supply utility that supplies water for a variety of uses, including providing untreated water, in bulk, for bottling purposes. The County is currently engaged in a long-range planning effort designed to assess water supply demands and sources to supply those demands in the County over the next 50 years. The County also has completed a study of the two major springs in the County (Rainbow Springs and Silver Springs), and the County’s Board of County Commissioners is in the process of enacting certain recommendations contained in the study. The well for the proposed CUP allocation is located on approximately 160 acres in northern Marion County. Hastings and Greene's father owned the property from 1978 until the latter's death. In 1993, the latter's interest was transferred to Greene and two brothers, who now hold title to the property along with Hastings. The District is a special taxing district created by Chapter 373, Florida Statutes, and is charged with the duty to prevent harm to water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The District has implemented Chapter 373, Florida Statutes, in part, through the adoption of Rule Chapters 40C-2 and 40C-20, and the Applicant’s Handbook, Consumptive Uses of Water. Historic Uses of Water on the Mine Site Since the 1980s, the property where the proposed withdrawals will occur has been used for mining of limerock and has been known as the “Black Sink Mine." A ten-inch diameter well has been located on the Black Sink Mine property for 35 years. The well was originally used to provide water to augment water levels in canals in and around the Black Sink Mine property. Later the well was used to irrigate watermelons grown on the property before the mining operation began. The limerock mining operation at Black Sink Mine uses approximately 6 million gpd of surface water. The mine pit at the site is divided by an earthen berm that separates a larger, previously mined area from a smaller area where active mining is occurring. Surface water is pumped from the actively mined portion of the pit to the larger, previously mined portion of the pit, to enable mining of the limerock material to be conducted at levels below the water table. Dewatering is necessary in order to remove the limerock. A majority of the property is mined to a depth of 55 feet below land surface. The limerock material extracted from the site is transported by trucks from the site, approximately 100 trucks per day, to various sites across North Florida. The Need for the Proposed Use of Groundwater If mining of limerock continues at the current pace, the limerock material at the Black Sink Mine will be exhausted within a year. Recognizing that the productive use of the property for limerock mining was nearing an end, Greene and Hastings began exploring other potential uses for the property, including use of the existing well on the property for production of bottled water. To explore the feasibility of producing water for bottling from the existing well, in 2004 Greene and Hastings engaged an engineering firm with expertise in water resources to conduct a hydrogeologic study of the mine property and well. The results of the study, showing water of sufficient quality and quantity for production of bottled water, motivated Greene and Hastings to submit the CUP application which was the subject of the hearing. The study also determined that water withdrawn from the well could be marketed as spring water. Greene and Hastings also determined through market research that the demand for bottled water has increased at the rate of ten percent per year for the last 4-5 years and that Florida bottlers were interested in purchasing water from the well on the mine site in bulk for bottling. In order to provide reasonable assurance that the water use proposed by Greene and Hastings is in such quantity as is necessary for economic and efficient utilization, Greene and Hastings must show that the amount to be used is consistent with what would typically be required for the activity being supplied; that the water will be used efficiently with loss or waste minimized; and that there is a demonstrated need for the water proposed for allocation. To demonstrate a need for the 499,000 gpd of groundwater requested in the application for an allocation of 499,000 gpd of groundwater, Greene and Hastings provided letters from two businesses engaged in bottling of water stating an intent to purchase specific quantities of water produced from the Greene and Hastings well should the CUP be granted. One of the letters of intent came from a bottler in Jacksonville, Florida, stating its intention to initially purchase 100,000 gpd of Greene and Hastings’s water. The other was from a bottler in Stuart, Florida, dated January 9, 2006, stating its intention to purchase 125,000 gpd of water from Greene and Hastings within “the next 12-24 months.” Based on these letters Greene and Hastings initially requested an allocation of 200,000 gpd of groundwater for the first year of the permit. Prior to completion of the CUP application, Greene and Hastings learned that because the Stuart bottler’s facility was located outside the geographic boundaries of the District, to transport water from the Black Sink Mine to the Stuart facility would require additional data and information related to inter- district transfers of groundwater. Greene and Hastings elected to reduce the requested allocation for the first year of the permit to 100,000 gpd, relying on the letter from the Jacksonville bottler. Based on the current market demand for bottled water, and based on the fact that there are other bottlers of water within the boundaries of the District purchasing water for bottling, it is reasonable to conclude that Greene and Hastings can sell 499,000 gpd of water from the well on the Black Sink Mine property by the end of the fifth year of the proposed CUP. These facts support the conclusion that there is a need for the amount of water requested by Greene and Hastings. In addition, the permit is conditioned to require a compliance review at five-year intervals during the term of the permit. Should Greene and Hastings not be successful in selling the full 499,000 gpd allocated by the fifth year of the permit, the District has the ability as part of the five-year compliance review to modify the permit to reduce the allocation based on the amount of water actually used for bottled water. Efficiency of the Proposed Use of Water The production of water in bulk for shipment to a bottler is a highly efficient use of water. There is very little if any water lost in the withdrawal and loading of the water; almost all the water goes to the end product. The evidence establishes that the use proposed by Greene and Hastings is an efficient use of water. Potential Impacts from the Proposed Groundwater Allocation The source of the groundwater proposed for use by Greene and Hastings is the Floridan aquifer. Because there is no confining layer in the vicinity of the Black Sink Mine that would retard movement of water between the Upper Floridan aquifer and the surficial aquifer, both the Upper Floridan aquifer and the surficial aquifer essentially behave as one unit. Thus, any drawdown in the surficial aquifer associated with groundwater withdrawals at this location will be the same as the related drawdown in the Upper Floridan aquifer as a result of groundwater withdrawals. The Floridan aquifer is capable of producing the amount of groundwater requested by Greene and Hastings in the application. To assess the level of drawdown expected to occur in both the Floridan aquifer and the surficial aquifer as a consequence of the proposed groundwater withdrawals, Greene and Hastings engaged a consultant, Andreyev Engineering, Inc., to run a groundwater model to simulate the proposed withdrawal and predict the anticipated drawdown. The groundwater model selected for use for this application was the North Central Florida Regional Groundwater Flow Model, a model developed for the District by the University of Florida for use in Marion County and surrounding areas. This model is an accepted and reliable tool for predicting aquifer drawdown associated with groundwater withdrawals at the location of the withdrawals proposed in this application and is used extensively by the District in its CUP program. To simulate the drawdown associated with the withdrawal of 499,000 gpd from the Florida aquifer, Greene and Hastings’s consultant inserted a pumping well in the model grid where the Black Sink Mine is located. The model then simulated pumping from the well at 499,000 gpd. The model results are graphically depicted on maps showing drawdown contours overlain on the Black Sink Mine Site, illustrating the level of drawdown in the aquifer and the distance the level of drawdown extends out from the well site. The model predicts a drawdown of 0.03 feet in the Floridan and surficial aquifers in the immediate vicinity of the well on the Black Sink Mine property, and a drawdown of 0.02 feet in the Floridan and surficial aquifers extending out to a distance of approximately 5,000 feet from the well, less than 1/3 of an inch of drawdown. The model results represent a reasonable estimation of the drawdown that will occur as a consequence of withdrawal of 499,000 gpd of groundwater at the Black Sink Mine as proposed in the application. The impact of the 0.02-0.03 foot drawdown predicted by the model was variously characterized by the experts who testified at the final hearing as “not practically measurable,” an “insignificant impact,” “very small,” or “de minimus.” The use of water proposed by Greene and Hastings will not cause significant saline water intrusion, nor will it further aggravate any existing saline water intrusion problems. The use of water proposed by Greene and Hastings will not induce significant saline water intrusion to such an extent as to be inconsistent with the public interest. Because the predicted drawdown is so small, it will not interfere with any existing legal uses of water. Neither will the predicted drawdown cause serious harm to the quality of the source of the water proposed for use by Greene and Hastings. With regard to the issue of interference with existing legal users, the County argued that the District should have considered whether there is sufficient groundwater available to meet all projected needs for water in the County during the 20- year term of the permit, as well as the additional cost County citizens will need to bear to secure alternative water supplies as a result of any future shortfalls in available groundwater. The County projects, based on planning estimates, that use of groundwater to supply all anticipated uses of water in the County will be limited within 20-30 years from the present. Such “limits” would not become an issue until after the Greene and Hastings permit expires. Thereafter, water users in the County will have to rely on alternative water sources, conservation, reuse of reclaimed water, and surface water. The anticipated growth in demand in the County’s planning estimates includes anticipated growth in the commercial/industrial category of uses. The County’s estimated limits on groundwater use will occur whether or not the CUP requested by Greene and Hastings is approved. The District does not base its permitting decisions on a pending CUP application on the possibility that the source of water may become limited at some future time for water uses not presently permitted, provided the application meets all permitting criteria. The District allocates water for recognized beneficial uses of water, such as commercial/industrial uses, as long as the water is available and the application meets District criteria. The District allocates water as long as an allocation does not cause harm to the resource. Based on these facts, the proposed use of water by Greene and Hastings will not interfere with any existing legal use of water. No Evidence of Economic or Environmental Harm Because the predicted drawdown associated with the proposed use of water is so small, and because no impacts are anticipated on any surrounding properties or water uses, Greene and Hastings have provided reasonable assurance that any economic harm caused by the proposed use has been reduced to an acceptable amount. For purposes of determining whether an applicant has provided reasonable assurance that any environmental harm caused by a proposed use of water is reduced to an acceptable amount, the District examines modeling results showing the level of drawdown predicted for the use and also examines the resources in and around the site of a withdrawal to determine the likely impact of the drawdown predicted for the withdrawal on those resources. The District’s environmental scientists examined the Black Sink Mine site and the surrounding landscape and determined that, based on the characteristics of the landscape in and around the site of the proposed withdrawal and based on the negligible drawdown impact predicted for the proposed water use in both the Floridan and surficial aquifers, there will be no environmental harm resulting from the allocation of groundwater contained in the CUP. The use of water proposed by Greene and Hastings will not cause damage to crops, wetlands, or other types of vegetation. The use of water proposed by Greene and Hastings will not cause the water table to be lowered so that stages or vegetation will be adversely and significantly affected on lands other than those owned, leased, or otherwise controlled by Greene and Hastings. The CUP will not use water that the District has reserved pursuant to Section 373.223(3), Florida Statutes, and Rule 40C-2.301(4). No Impact on Established Minimum Flows or Levels No minimum surface or groundwater levels or surface water flows have been established by the District pursuant to Rule Chapter 40C-8 for any of the water bodies in Marion County that may be affected by the proposed water use. The closest water body for which the District has established a minimum flow is the St. Johns River at the State Road 44 bridge located more than 50 miles from the Black Sink Mine property. The closest water body for which the District has established a minimum level is Star Lake in Northwest Putnam County, more than nine miles from the mine site. Because of the distance of these water bodies from the withdrawal site and because of the negligible drawdown expected to be caused by the proposed use of water, the use will not cause an established minimum flow or level to be exceeded during the term of the permit. Other Reasonable-Beneficial Use Considerations All available conservation measures that are economically, environmentally, and technically feasible are proposed for implementation in the application by Greene and Hastings for the uses proposed by them. Greene and Hastings submitted to the District, as part of the application, a conservation plan that complies with the requirements of A.H. Section 10.3(e). Reclaimed water, as defined in the District’s rules, is not currently available to be used in place of the water proposed for use by Greene and Hastings in the application. The use of water proposed by Greene and Hastings in the application will not cause or contribute to a violation of water quality standards in receiving waters of the state. The use of water proposed by Greene and Hastings in the application will not cause or contribute to flood damage. The Use is Consistent With the Public Interest With regard to the determination of whether reasonable assurance was provided that the proposed use is consistent with the public interest, the County contends that: 1) Greene and Hastings must show that any necessary approvals required by the County’s Comprehensive Plan and/or its LDRs for use of the site for producing bottled water have been obtained; 2) that the District did not properly consider the effect of existence of lawn watering restrictions affecting citizens in the County in evaluating the application; and 3) that the District should have considered the amount of money the applicant may stand to gain from the use of the water requested in the application. In examining whether an application is consistent with the public interest, the District considers whether a particular use of water is going to be beneficial or detrimental to the people of the area and to water resources within the state. In this inquiry, the District considers whether the use of water is efficient, whether there is a need for the water requested, and whether the use is for a legitimate purpose; and the inquiry focuses on the impact of the use on water resources and existing legal users. Sale of water for bottling for human consumption is recognized by the District as a legitimate, beneficial economic enterprise. Use of water for human consumption is among the highest and best uses permitted by the District. For reasons outlined above in the Recommended Order, there are no detrimental impacts that will result from this use of water. The District does not consider whether local government approvals have been obtained prior to issuance of a CUP for purposes of determining whether the application is consistent with the public interest. Neither does the District consider impacts related to local roads from trucks transporting the water or other impacts not related to water resources. No such requirements are included in the District’s adopted permitting criteria. There are no water shortage orders in effect in the District at present. In evaluating a CUP application, the District considers whether its permitting criteria will be met during periods of normal weather as well as during periods of drought. Withdrawals authorized in CUPs can be restricted by order of the District during periods of water shortage, such as droughts. Thus, the possibility of a water shortage order being entered in the County in the future, or the fact that such orders may have been in effect there in the past, does not mean the application is not consistent with the public interest. The District critically examines the efficiency of all water uses for purposes of enacting its regulatory requirements regarding CUPs and in evaluating CUP applications. The District has adopted restrictions on landscape irrigation (which apply to all such users throughout the District’s jurisdiction, not just in Marion County) limiting landscape irrigation to no more than two days per week. The limitations on landscape irrigation exist because this type of use has been determined to be a highly inefficient, wasteful use of water without such restrictions. By contrast, the use of water proposed by Greene and Hastings is a highly efficient use of water, resulting in little or no loss or waste of water. The District does not consider the level of financial gain or benefit an applicant will derive from a permitted use of water for purposes of determining whether the proposed use is consistent with the public interest. Most, if not all permitted users of water derive some level of economic benefit from the water they use, and the District’s rule criteria do not provide standards for evaluating such gain or that otherwise limit the amount of such gain. For the foregoing reasons, the Applicant has provided reasonable assurance that the use of water proposed in the application is consistent with the public interest. Groundwater is the Lowest Quality Source for this Use The County contends that groundwater is not the lowest quality source of water available for the use proposed by Greene and Hastings, in that surface water from the mine pit on the site could be treated and used for bottling in place of groundwater. From the testimony, it is clear that Greene and Hastings’s ability to market water for bottling from the Black Sink Mine is dependent on such water being capable of being labeled as spring water, and on such water being delivered without having gone through any treatment processes. The testimony also establishes that because of the connection between the surficial aquifer and the Upper Floridan aquifer at the site, using surface water instead of groundwater to supply the proposed use would result in little if any reduction in impacts to the Floridan aquifer. More importantly, because the application proposes use of water for direct human consumption, the District’s rules do not require use of a lower quality source of water. For the foregoing reasons, groundwater is the lowest quality source of water suitable for use for bottled water for human consumption. The District’s Noticing Was Adequate and Appropriate The District provided notice of its receipt of the Greene and Hastings CUP application by publishing notice in the Ocala Star-Banner, a newspaper of general circulation in Marion County, on January 25, 2005, with an amended notice being published on February 16, 2005, and also by letters to the County dated January 20, 2005, and February 10, 2005. In each notice, the location of the proposed use was identified by section, township, and range. The County responded to the notices by sending a letter of objection to the application dated February 14, 2005. Thus, the County received sufficient information regarding the location of the proposed use to enable it to prepare and file a letter of objection to the application, and suffered no prejudice as a consequence of the notice. The District provided personal notice of its intent to issue a CUP to Greene and Hastings by letter dated April 5, 2006. In this notice, the location of the proposed use was identified by section, township, and range. The County responded by filing petitions that have resulted in this proceeding. Thus, the County received sufficient notice of the location of the use addressed in the District’s intent to issue to enable it to initiate administrative proceedings regarding the permit, and suffered no prejudice as a consequence of the notice.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter an order granting CUP No. 97106 to Greene and Hastings with the conditions recommended in the District’s Technical Staff Report. DONE AND ENTERED this 9th day of January, 2007, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th of January, 2007.
The Issue The issue is whether Respondent, Dames Point Workboats, LLC, is entitled to issuance of the Consolidated Environmental Resource Permit and Recommended Intent to Grant Sovereignty Submerged Lands Authorization, Permit No. 16-0345934-003-EI, as announced by Respondent, Department of Environmental Protection, in the Consolidated Notice of Intent to Issue Environmental Resource Permit and Lease to Use Sovereignty Submerged Lands issued on July 20, 2018, and subsequently amended on December 11, 2018.
Findings Of Fact The Parties Petitioner City is a consolidated municipality and county political subdivision of the State of Florida. The Project is located within the geographic boundary of the City. The City initiated this proceeding by filing its Verified Petition for Formal Administrative Hearing ("Petition") with DEP on August 17, 2018. Respondent Workboats is the applicant for the Project. Its business address is 5118 Heckscher Drive, Jacksonville, Florida 32226. Workboats' owner, Shafnacker, owns the property located upland of the sovereignty submerged lands on which the Project is proposed to be constructed and operated. Respondent DEP is the administrative agency of the State of Florida statutorily charged with, among other things, protecting Florida's water resources. As part of DEP's performance of these duties, it administers and enforces the provisions of chapter 373, part IV, Florida Statutes, and the rules adopted pursuant to those statutes. Pursuant to that authority, DEP determines whether to issue or deny applications for environmental resource permits. Pursuant to section 253.002, DEP also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") and in that capacity, reviews and determines whether to issue or deny applications for sovereignty submerged lands leases. The Back Channel and Vicinity of the Project The Project is proposed to be located in the "Back Channel" area of the St. Johns River, directly across from Blount Island. The Back Channel, as a part of the St. Johns River, is classified as a Class III waterbody. It is not designated an Outstanding Florida Water, is not located within an Aquatic Preserve, and is not designated for Shellfish Propagation or Harvesting. The Back Channel is configured in the shape of an inverted "U" and runs between Blount Island and Heckscher Drive, from the southeast corner of Blount Island to the bridges located on the northwest side of Blount Island. It constitutes a portion of the historic main channel of the St. Johns River and was used for all vessel navigation in the river until the Dames Point Cut was dredged through a peninsula to the south, creating Blount Island and a new straight channel to the Atlantic Ocean. Most vessels, including large ships, use the Dames Point Cut for ingress into and egress from the St. Johns River. However, the Back Channel remains navigable and is used for recreational activities and some commercial and industrial navigation. A mix of residential, commercial, and industrial and land uses is located on the north shore of the Back Channel in the vicinity of the Project. These uses consist of approximately 90 single-family residences having docks, three fish camps/recreational marinas, two restaurants, and docking structures used for mooring inshore shrimping vessels. A docking facility owned by M & M Shrimp and used for mooring shrimping vessels is located on the Back Channel immediately to the west of the Project site. A residence owned by Wood is located on the Back Channel immediately east of the Project site. Four other residences are located immediately east of Wood's residence, and back up to the Back Channel. Most of the shoreline on which these residences are located consists of riprap; however, a small patch of salt marsh borders the shoreline on Wood's residential parcel. Although Blount Island is a heavy industrial port, its northern shoreline on the Back Channel, across from the proposed Project site, consists of relatively undisturbed salt marsh and trees. The northeastern shoreline of the Back Channel generally consists of salt marsh and riprap, with docks constructed along the shoreline. Two bridges connect Blount Island to the mainland a short distance west of the proposed Project. These bridges each have a clearance of approximately ten feet, so they cannot be cleared by large vessels. As a practical matter, this has the effect of limiting the size of vessels that use the Back Channel in the vicinity of the Project. The Back Channel west of the bridges to the southwestern tip of Blount Island is fronted by heavy industrial uses, and numerous multi-family residential and industrial docking facilities are located in this area. A slow speed, minimum wake zone for boat operations extends 300 feet out into the Back Channel from both the north and south shorelines. The Back Channel is approximately 1,340 feet wide at the point at which the Project is proposed to be constructed. The Proposed Project The proposed Project will be constructed and operated4/ as a commercial tugboat/work boats mooring and loading/ offloading facility. The Project is proposed to be constructed and operated on sovereignty submerged lands5/ and in surface waters subject to State of Florida regulatory jurisdiction. Therefore, an environmental resource permit and sovereignty submerged lands lease are required for construction and operation of the Project.6/ The Project will be located waterward of the mean high water line on sovereignty submerged lands adjacent to four upland waterfront parcels that are owned by Shafnacker. These lots are: Lot 6 (5100 Heckscher Drive, RE 159971 0000); Lot 7 (5110 Heckscher Drive, RE 159972 0000); Lot 8 (5118 Heckscher Drive, RE 159973 0000); and Lot 9 (5120 Heckscher Drive, RE 159974 0000). Collectively, these lots have approximately 425 feet of linear shoreline, as measured at the mean high water line, bordering the Back Channel. This shoreline is comprised of salt marsh and riprap. A substantial portion of lots 6, 7, and 8 consists of salt marsh wetlands. No structures are proposed to be constructed on Lot 6. The salt marsh areas on lots 7 and 8 are traversed by existing pile-supported piers/access docks. To the extent they are replaced, such replacement will be by like-for- like structures, so there will be no new impact to the salt marsh wetlands on these lots. Most of Lot 9 consists of upland, some of which is authorized to be refilled under the Consolidated Authorization. A small wetland area consisting of approximately 18 square feet of salt marsh will be crossed by a new dock, but will not be filled or otherwise physically impacted. Dock A is proposed to be located on sovereignty submerged lands waterward of Lot 7, and will consist of a 15.4-foot-long by 8-foot-wide extension added to the waterward end of an existing 150.8-foot-long by 8-foot-wide wooden dock, plus a 4-foot-long gangway attached to the waterward end of the extension, which will connect to a 100-foot-long by 9.5-foot wide concrete floating dock. Dock B is proposed to be located on sovereignty submerged lands waterward of Lot 8, and will consist of a 40-foot-long by 10.3-foot-wide concrete floating dock with an 18-foot-long by 6-foot-wide platform, and a 4-foot-long gangway attached to an existing 125.2-foot-long by 5-foot-wide wooden dock. Dock C is proposed to be located on Lot 9, and will consist of a new inverted-L-shaped dock consisting of a 71-foot- long by four-foot wide pile-supported finger dock extending perpendicular to the shoreline into the Lease area, and a 26-foot long by 4-foot-wide dock running roughly parallel to the shoreline that will be constructed outside of the Lease area. Four wooden pilings also are proposed to be installed waterward of Lot 9. Three of these pilings will be located along the eastern boundary of the Lease, and the piling closest to the shoreline of Lot 9 will be located outside of the Lease area. All of these pilings will be set back 25 feet from Workboats' eastern riparian rights line. The newly constructed piling-supported dock additions to docks A and B, and new Dock C, will be elevated four feet above the marsh and will be constructed by hand-laying planks from the shoreline outward into the water, using the previously- laid planks as support while laying the new planks. Three three-pile mooring dolphins also are proposed as part of the Project. They will be installed within the Lease area, set back 38 feet from the southern boundary. No dredging is proposed or authorized for the Project. The Lease will be issued for a term of ten years and will preempt approximately 49,746 square feet of sovereignty submerged lands. The western boundary of the Lease is located 25 feet east of the upland property's western riparian rights line, and the eastern boundary of the Lease is located 25 feet west of the upland property's eastern riparian rights line. With the exception of a portion of Dock C and one wood piling that will be constructed on submerged land owned by Shafnacker,7/ all other structures proposed as part of the Project will be constructed within the boundaries of the Lease, and all vessel mooring and over-water operational activities authorized as part of the Project will occur within the Lease area. The Consolidated Authorization authorizes the placement of approximately 3,500 square feet of fill landward of the mean high water line and the jurisdictional wetland line, to replace historic fill eroded by hurricanes in 2017. Additionally, as a condition of the Consolidated Authorization, Workboats is required to restore approximately 250 square feet of salt marsh cord grass waterward of the mean high water line on Lot 9 as corrective action for unauthorized filling/destruction of salt marsh wetlands. As noted above, when constructed, the Project will operate as a tugboat/work boats mooring and loading/unloading facility. Workboats owns a fleet of approximately 40 vessels, comprised of barges, tow/push boats, and work boats, which are used to provide a range of marine services to third parties, including the transport/delivery of food and other supplies; artificial reef placement; marine demolition; and pile driving. These vessels will be moored at the docks, mooring dolphins, and mooring piles comprising the Project.8/ Of these 40 vessels, 28 are barges that range from ten to 130 feet in length, and have drafts ranging from 1.5 to 7.5 feet deep. The remaining 12 vessels are boats that range from 14 to 46.2 feet in length, and have drafts ranging from one foot to 6.8 feet deep. The water depths within the Lease area range from one tenth of one foot immediately adjacent to the shoreline, to between 39.5 and 43.5 feet deep at mean low water at the southern boundary of the Lease. Only one or two of the smaller boats in Workboats' fleet have drafts that are shallow enough to enable them to moor on the shoreward sides of Docks A and B. In any event, all vessels must moor in areas within the Lease area having depths at mean low water sufficient to ensure that they do not come into contact with submerged resources. To that end, a condition is included in the Consolidated Authorization requiring a minimum 12-inch clearance between the deepest draft of a vessel with the motor in the "down" position and the top of submerged resources at mean low water. The parties stipulated, and Shafnacker testified, that with the exception of the 32-foot-long Marlin Barge and the 10- foot-long Galligan barges, all other barges in Workboats' fleet will moor at the three-pile dolphins near the southern boundary of the Lease. Some barges will be anchored to the substrate by spuds, and the condition requiring 12 inches of clearance between the vessel bottom and the top of submerged resources would not apply to the spuds themselves. The parties stipulated, and Shafnacker testified, that Workboats will only load vessels from Dock B, which is appurtenant to Lot 8, and that the only equipment that will be used to load vessels will be equipment small and light enough to traverse Dock B——specifically, a Takeuchi mini-excavator, small forklift, or similarly-sized equipment. These limitations regarding the loading of vessels within the Lease area are not currently included as conditions of the Consolidated Authorization. Based on the parties' stipulation and competent substantial evidence in the record, conditions should be added to the Consolidated Authorization expressly limiting the loading of vessels in the Lease area to occurring only on Dock B, and limiting the type of equipment used for vessel loading and unloading to forklifts, mini-excavators, or similar light equipment. Shafnacker testified that the only other work that may be performed within the Lease area would consist of certain minor maintenance activities on Workboats' vessels; these minor repair activities include non-routine paint touchups and handrail painting, minor cable and winch repairs, and minor steel-rod (non-lead) welding. DEP Review and Approval of the Project Workboats filed a Joint Application for Individual Environmental Resource Permit/Authorization to Use State-Owned Submerged Lands/Federal Dredge and Fill Permit ("Application") on or about June 15, 2018. The Application was determined to be complete. DEP staff reviewed the Application and determined that the Project, as proposed, met the applicable statutory standards and rule requirements for issuance of the Consolidated Authorization. DEP issued the Consolidated Notice of Intent on or about July 20, 2018, proposing to issue the environmental resource permit and Lease for the Project. The Application, Consolidated Notice of Intent, and Consolidated Authorization were admitted into evidence at the final hearing. Compliance with Rule 62-330.301 For Workboats to be entitled to issuance of the environmental resource permit for the Project, it must provide reasonable assurance9/ that the Project meets the requirements of rule 62-330.301.10/ Water Quantity, Storage, Conveyance, and Flooding Impacts The entire Project, as proposed, will be constructed waterward of the mean high water line and will consist of mooring piles, piling-supported docks, and floating docks. These structures will not affect, impound, store, divert, or impede the amount or flow of surface water. The evidence demonstrated that the Project, if constructed and operated as proposed, will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; and will not cause adverse impacts to existing surface water storage and conveyance capabilities. Impacts to Value of Functions Provided to Fish, Wildlife, Listed Species, and Habitat Two types of habitat exist at the Project site: salt marsh and submerged benthic habitat. The evidence established that the salt marsh at the Project site is healthy, high-quality, high-functioning salt marsh habitat. Among the functions the salt marsh provides are preservation and improvement of water quality by filtering runoff, serving as a nursery for fish species, preventing shoreline erosion, and forming the base of the estuarine food chain. The salt marsh, in combination with existing riprap at the edge of the salt marsh, forms a "living shoreline" at the Project site that helps protect the shoreline from erosion and scouring due to wave action. This living shoreline is not being removed or otherwise affected, and will remain in place at the Project site. The submerged benthic sediment at the Project site consists of high organic silts and a sand base. The evidence established that the benthic sediment provides habitat for infauna, such as polychaete worms; and for epifauna, such as shrimp, crabs, and mollusks. No submerged aquatic vegetation or oyster bars were found at the Project site. Docks A and B consist of extensions that will be added to two existing docks that previously were constructed through the salt marsh. These extensions will be constructed four feet above the marsh floor to reduce shading, using minimally- impactful construction techniques, discussed above, to help avoid and minimize construction impacts to the marsh. The floating components of docks A and B will not have any impact on the salt marsh habitat. Dock C will be constructed waterward of Lot 9, across a very small section of salt marsh grass. It also will be elevated four feet above the marsh floor to reduce shading, and will be constructed using the same minimally-impactful technique, to avoid and minimize impacts to the marsh. Because Dock C will have only de minimis impacts on the salt marsh, no mitigation has been required. The Consolidated Authorization contains conditions requiring Workboats to avoid impacts to emergent grasses during construction and operation of the Project, and prohibiting Workboats from storing or stockpiling tools, equipment, materials, and debris within wetlands. These conditions will help ensure that the Project will have only minimal impacts on the salt marsh habitat at the Project site. The Consolidated Authorization contains a specific condition requiring maintenance of a minimum 12-inch clearance between the deepest draft of the vessel, with the motor in the down position, and the top of submerged resources for all vessels that will use the docking facility. Additionally, the construction of mooring areas over submerged grass beds is prohibited. These conditions will help protect benthic habitat at the Project site. The Florida Manatee is the only listed species that inhabits the Project site. Video evidence presented by the City showed manatees present at, and in the vicinity of, the Project site. The Project is located in an area designated, in the most recent Duval County Manatee Protection Plan (November 2017) ("MPP"), as "preferred" for boat facility siting. Boating facilities located in designated "preferred" areas generally do not have any limits on the number of slips at the facility. "Preferred" boat facility siting areas were designated in the MPP based on many factors, including manatee abundance, presence of manatee feeding habitat, proximity to boating destinations, manatee mortality in the area, existing boating slip numbers and locations, boating facility type and number, and existence of speed zones. To protect manatees in the Back Channel, the Florida Fish and Wildlife Conservation Commission ("FWC") has, by rule, established a slow speed, minimum wake zone extending 300 feet from the shorelines into the Back Channel. A slow speed, minimum wake zone means that a vessel must be fully off-plane and completely settled into the water, proceeding at a speed which is reasonable and prudent under the prevailing circumstances so as to avoid the creation of an excessive wake or other hazardous condition which endangers or is likely to endanger other persons using the waterway.11/ Fla. Admin. Code R. 68C-22.02(4). The existence and enforcement of this speed zone will help protect manatees in the Back Channel. Conditions also have been included in the Consolidated Authorization to help protect manatees from impacts from the Project. As previously discussed, for each vessel, a minimum 12-inch clearance between the deepest draft with the motor down, and the top of the submerged resources at mean low water, must be maintained. This condition will help ensure that manatees do not become trapped under or crushed by a vessel while moored in the Lease area. Additionally, bumpers or fenders must be installed and maintained to provide at least three feet of separation between moored vessels and between the docks/mooring piles and vessels, to help prevent trapping or crushing of manatees. The Consolidated Authorization also requires the Project to be constructed and operated in accordance with the Standard Manatee Conditions for In-Water Work. These conditions include: instructing all personnel, including construction personnel, about the presence of manatees and manatee speed zones, and the need to avoid collisions with and injury to manatees, as well as about civil and criminal penalties imposed for harming, harassing, or killing manatees; operating all vessels associated with construction of the Project at "idle speed/no wake" at all times in the vicinity of the Project and where the draft of the vessel provides less than a four-foot clearance from the bottom; the requirement that all in-water operations, including vessels, must shut down if a manatee comes within 50 feet of the operation and cannot resume until the manatee either moves beyond the 50-foot radius of the operation or 30 minutes has elapsed and the manatee has not reappeared within 50 feet of the operation; the installation of specified temporary signage; and the installation of specified permanent signage. The inclusion of these conditions in the Consolidated Authorization provides reasonable assurance that the construction and operation of the Project will not adversely affect the value of functions provided to fish, wildlife, or listed species and their habitats. Water Quality Impacts As previously noted, the St. Johns River, including the Back Channel, is a Class III waterbody. Accordingly, the surface water quality standards and criteria applicable to Class III waters in Florida codified in Florida Administrative Code Rule 62-302.300 apply to the Back Channel. The Back Channel portion of the St. Johns River has been identified as impaired for lead, pursuant to Florida Administrative Code Chapter 62-303. The credible, persuasive evidence demonstrates that the Project, if constructed and operated in accordance with the conditions currently included in the Consolidated Authorization along with additional conditions discussed below, will not cause or contribute to water quality violations. Specifically, the Project will be required to install and maintain turbidity barriers during the construction phase to help ensure that any sediment disturbed during construction does not cause or contribute to water quality violations. Additionally, as discussed above, a minimum 12-inch clearance between the deepest draft of each vessel, with the motor down, and the top of the submerged resources at mean low water must be maintained. This will help prevent the suspension of sediments, and any constituents in those sediments, from being suspended in the water column and causing or contributing to water quality violations, as a result of the Project. The Consolidated Authorization also prohibits the storage or stockpiling of tools, equipment, materials, such as lumber, pilings, riprap, and debris within wetlands or other waters of the state; prohibits the discharge of construction debris into waters of the state; prohibits the overboard discharge of trash, human or animal waste and fuel at the docks; and requires all work to be done in periods of average or low water, so that impacts to submerged resources, including bottom sediment, can be avoided. Collectively, these conditions help provide reasonable assurance that the construction and operation of the Project, including the mooring and operation of vessels in the Lease area, will not violate water quality standards. White testified that, generally, the water quality in, and in the vicinity, of marinas degrades over time due to the discharge of oils, greases, and other waste; and the suspension in the water column of sediments and toxins, pesticides, herbicides, and heavy metals in those sediments, as a result of propeller dredging. However, Irwin testified that because the Project site is located in a tidally-influenced area, with an approximate 3.5-foot tide range over multiple tide changes per day, the Project site will be adequately flushed such that there will not be an accumulation of pollutants that may violate water quality standards. Based on Irwin's persuasive testimony, it is determined that water quality violations will not occur due to an accumulation of pollutants at the Project site. To further ensure that the Project will not degrade water quality or violate water quality standards at the Project site, the Consolidated Authorization requires Workboats to submit a facility management plan to address maintenance and unexpected spills of fuels and other pollutants. The facility management plan must include a spill response plan for fuel spills; a plan for maintenance of gray water collection systems and return systems, to the extent applicable; a plan addressing garbage collection and vessel cleaning systems to prevent disposal of waste in wetlands; and an education plan for all employees at the Project regarding fueling, sewage and gray water pump operations, waste management, and facility maintenance. Sewage pump-out facilities are not proposed as part of the Project. Shafnacker testified, and the Consolidated Authorization, Project Description section currently states, that domestic waste from boat heads will be handled through use of a waterless incinerating toilet (Incinolet or similar), and the remaining ash shall not be disposed of in waters of the state. However, it is noted that this requirement is not currently included as an enforceable condition. The undersigned finds that a specific condition expressly prohibiting any sewage pump-out at the docks or on vessels, requiring the use of an incinerator toilet, and prohibiting the discharged of ash waste should be included in the Consolidated Authorization to provide reasonable assurance that the Project will not violate water quality standards due to the discharge of sewage into waters of the state. The Consolidated Authorization, Project Description section, states: This permit does not authorize the installation and use of fueling equipment at the Dock; the discharge of waste into the water; liveaboards; fish cleaning or the installation of fish cleaning stations; repair and maintenance activities involving scraping, sanding, stripping, recoating, and other activities that may degrade water quality or release pollutants into Waters of the State. Major repair, reconstruction, and/or other service must be performed at a facility approved for vessel haul-out and repair. This does not preclude the light maintenance allowed under Specific Condition 18 to be performed at the facility. This language, which expressly identifies numerous activities that are prohibited in connection with the operation of the Project, is not currently included as an enforceable condition in the Consolidated Authorization. The undersigned determines that in order to protect water quality at the Project site, this language must be included as a specific condition in the Consolidated Authorization. As previously noted above, the Back Channel is impaired for lead. Both Irwin and Hallett testified that Workboats would not use lead paint or lead-containing welding equipment on the docks or vessels moored in the Lease area. To provide reasonable assurance that the Project will not constitute a source of lead that will contribute to the impaired status of the Back Channel, a specific condition prohibiting the use of lead-based paints and other sources of lead should be included as an enforceable condition in the Consolidated Authorization. Based on the foregoing, the undersigned finds that, with the addition of the conditions discussed in paragraphs 68, 69, and 70 above, Workboats has provided reasonable assurance that applicable water quality standards will not be violated as a result of construction or operation of the Project. Adverse Secondary Impacts to Water Resources Secondary impacts are impacts caused by other relevant activities very closely linked or causally related to the activity itself, rather than the direct impacts of the proposed activity itself.12/ The conditions currently included in the Consolidated Authorization, along with the conditions addressed in paragraphs 68, 69, and 70 above, provide reasonable assurance that the Project will not cause adverse secondary impacts to water quality. Additionally, the Project will not cause adverse secondary impacts to the functions of wetlands and surface waters, aquatic or wetland-dependent species, or listed species. As discussed above, the salt marsh habitat will not be disturbed during construction and operation of the Project, and the benthic habitat will be protected by the minimum 12-inch vessel to the top of submerged resource clearance requirement discussed above. These Project features and conditions will help ensure that there are no adverse impacts to wetland functions and to aquatic or wetland-dependent species, such as fish and benthic fauna. Additionally, the Project will be located within a slow speed, minimum wake zone, and Workboats will be required to operate all of its vessels in compliance with that standard within the 300-foot buffer along the shorelines of the Back Channel. This operational constraint, along with additional manatee protection conditions discussed above, provide reasonable assurance that the Project will not cause adverse secondary impacts to manatees. Based on the foregoing, it is determined that, with the addition of the conditions addressed in paragraphs 68, 69, and 70, above, Workboats has provided reasonable assurance that the Project will not have adverse secondary impacts to the water resources. Impacts to Ground and Surface Water Levels and Surface Water Flows As discussed above, the Project will be constructed waterward of the mean high water line, and will consist of piling-supported and floating docks and mooring piles that will not adversely impact the maintenance of minimum surface or ground water levels or surface water flows at the Project site. Impacts to Works of the District The Project is not proximate to any works of the district, as approved pursuant to section 373.086; accordingly, it will not cause adverse impacts to such works. Capable of Performing and Functioning as Designed The Project was designed by an engineer and will be installed by Shafnacker, who is an experienced marine contractor. The Consolidated Authorization requires that the Project must be implemented in accordance with the approved plans, specifications, and performance criteria. Within 30 days of completion of construction of the Project, Workboats must submit an as-built survey, signed and sealed by a Florida licensed Surveyor and Mapper in accordance with Florida Administrative Code Chapter 61G17-7, depicting the boundaries of the Lease, and showing the size and dimensions of all existing overwater structures and activities within the Lease area. Additionally, the surveyor must provide a statement that all of the depicted structures and activities are located within the Lease area; or identify, and depict on an as-built survey, any structures or activities outside of the Lease area. These requirements will ensure that the Project performs and functions as designed. Financial, Legal, and Administrative Capability Rule 62-330.301(1)(j) requires an applicant for an environmental resource permit to provide reasonable assurance that the project will be conducted with a person having the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit.13/ The Environmental Resource Permit Applicant's Handbook, Volume I (General and Environmental) ("Handbook"), section 1.5.1., which provides further guidance regarding compliance with the requirement in rule 62-330.301(1)(j), states that "[c]ompliance with this requirement must be demonstrated through subsections 62-330.060(3) and (4), the certification required in the Application Form 62-330.060(1), and section 12.0 of the Handbook." As part of the Application, Workboats submitted copies of warranty deeds for lots 6, 7, and 8, and Disclaimer No. 22146 for Lot 9. These documents establish that Shafnacker holds title to the uplands on lots 6 through 9 and to certain submerged lands waterward of Lot 9. Pursuant to Handbook section 4.2.3, these documents satisfy the "sufficient upland interest" requirement in rules 62.330.060(3) and 62- 330.301(1)(j). Rule 62-330.060(3) also requires the applicant and/or the applicant's agent to sign specific parts of the application. Here, Workboats, and Shafnacker, as Workboats' agent, signed the pertinent portions of the Application, as required by this rule. Rule 62-330.060(4) and pertinent provisions of section 12.0 of the Handbook——specifically, provisions in sections 12.1 and 12.2——require that once construction of the permitted activity is complete, it must be converted to the operational phase by submitting an as-built certification and request for conversion to operational phase. Here, the Consolidated Authorization for the Project requires submittal of this form, once construction is complete, as a condition for operation of the Project. These are the only rules and Handbook provisions regarding demonstration of financial, legal, and administrative capability that are pertinent to the Project. No other environmental resource permitting rules or Handbook provisions impose any other requirements regarding financial capability, and the City has not identified any case law or other statutes or rules imposing additional pertinent financial capability requirements. Thus, the evidence establishes that Workboats meets rule 62-330.301(1)(j) and all other pertinent rules and Handbook requirements, showing it has the financial, legal, and administrative capability to ensure the Project will be undertaken in accordance with the terms and conditions of the Consolidated Authorization. The City did not present any evidence to show that Workboats lacks the financial, legal, and administrative capability to undertake the Project as permitted. Compliance with Rule 62-330.302 For Workboats to be entitled to issuance of the environmental resource permit for the Project, it also must provide reasonable assurance that the Project meets the requirements of rule 62-330.302,14/ which establishes additional standards for issuance of environmental resource permits for activities in surface waters or wetlands. Adverse Effects to Public Health, Safety, or Welfare, or Property of Others In determining whether a proposed activity in surface waters or wetlands would adversely affect the public health, safety, or welfare, or the property of others, the focus is on environmental hazards or injuries that may result from the proposed activity.15/ Thus, alleged threats to personal safety and enjoyment of neighboring property resulting from alleged unlawful activities on the upland areas of lots 6, 7, and 916/—— which are not part of the Project——are not appropriately considered as part of the public interest determination under rule 62-330.302. As discussed above, the Consolidated Authorization contains conditions aimed at ensuring that water quality is not degraded and water quality standards are not violated due to the Project. These conditions, along with conditions addressed in paragraphs 68, 69, and 70, above, provide reasonable assurance that the public health, safety and welfare, and property of others will not be adversely affected as a result of water quality degradation or violations. The Project, as designed and approved, will have 25-foot setbacks from the eastern and western riparian rights lines for lots 6 through 9. These setbacks will help ensure that the construction and operation of the Project will not interfere with the adjoining properties' riparian rights. The City presented the testimony of O'Connor, who opined that some of Workboats' vessels, operated at full throttle, were capable of generating a wake as high as three feet. O'Connor testified that a wake of this height could damage docks along the shoreline of the Back Channel, cause shoreline erosion, and create a safety hazard for recreational boaters, kayakers, and others engaged in in-water recreational activities. As discussed above, the Back Channel is approximately 1,300 feet wide at the Project site. Per the location map provided as part of the specific purpose survey, the portion of the Back Channel east of the Project site is at least this wide for its entire length. Shafnacker testified, credibly, that his vessels typically operate closer to the Blount Island shoreline than the northern shoreline of the Back Channel, so are approximately 800 feet away from the northern shoreline where the residential docks and access points for boaters, kayakers, and other recreational uses are located. Additionally, Shafnacker credibly testified that Workboats' boats and barges would be operated at speeds such that the highest wake that any of his vessels would generate is two feet. Based on the foregoing, and with the inclusion in the Consolidated Authorization of the conditions addressed in paragraphs 68, 69, and 70, above, Workboats has provided reasonable assurance that the Project will not adversely affect the public health, safety, welfare, and property of others. Adverse Effects to Conservation of Fish, Wildlife, Listed Species, and their Habitats As previously discussed, the Consolidated Authorization requires Workboats to avoid impacts to emergent grasses during construction and operation of the Project, and prohibits Workboats from storing or stockpiling tools, equipment, materials, and debris within wetlands. These conditions will help ensure that the Project will have minimal impact on the salt marsh habitat at the Project site. The Consolidated Authorization also contains a condition prohibiting the construction of mooring areas over submerged grass beds. This, along with the condition requiring a minimum 12-inch clearance between vessel bottom and submerged resources, will help protect the benthic habitat at the Project site. Additionally, the Consolidated Authorization imposes conditions to protect manatees from impacts due to the Project. Specifically, bumpers or fenders must be installed and maintained to provide at least three feet of separation between docks or mooring piles and vessels, and between vessels, and a minimum 12-inch clearance between the deepest draft of the vessel and the top of the submerged resources at mean low water must be maintained. The Project also must be constructed and operated in accordance with the FWC's Standard Manatee Conditions for In-Water Work, which imposes construction and operational requirements to protect manatees for the life of the Project. The inclusion of these conditions in the Consolidated Authorization provides reasonable assurance that the Project will not adversely affect the conservation of fish and wildlife, including threatened species and their habitats. Adverse Effects to Navigation, Flow of Water, or Shoaling The Back Channel is navigable, and is over 1,300 feet wide at the point at which the Project is proposed to be located. It is used by a mix of recreational vessels and commercial and industrial vessels, although, as noted above, the low-clearance bridges on the western end of Blount Island effectively limit the commercial and industrial traffic to smaller-sized vessels. As depicted on the specific purpose survey submitted as part of the Application, the southern boundary of the Lease extends waterward approximately 196 feet from the shoreline at the eastern boundary of the Lease, and approximately 174 feet from the shoreline at the western boundary of the Lease. Thus, at its most waterward point, the preempted area of the Lease will extend waterward approximately 14 percent of the width of the Back Channel.17/ The specific purpose survey shows docks A and C extending waterward approximately 60 feet from the shoreline, and shows Dock B extending waterward approximately 45 feet from the shoreline.18/ The three three-pile dolphins, which will be used to moor the largest barges, will be set back approximately 38 feet from the southern boundary of the Lease. Shafnacker testified that barges moored at the three-pile mooring dolphins will be tied between the dolphins, by ropes at their bows and sterns, to ensure that they do not drift out of the Lease area and create a navigational hazard. The Consolidated Authorization contains a condition requiring the waterward ends of the docks and the mooring dolphins to be marked by reflectors so as to be visible from the water at night by reflected light. However, at the hearing, Shafnacker testified that he intended to mark the dolphins and barges with solar battery-powered lights so that they would be more visible at night than if only reflectors are used. Based on this testimony, it is recommended that Specific Condition No. 13 in the Consolidated Authorization be modified to require the barges and mooring dolphins to be marked by lights, as well as reflectors, to make them more visible from the water. Based on the foregoing, it is determined that the Project, as proposed, will not adversely impact navigation in the Back Channel. Specifically, the Lease will not extend a significant distance out into the Back Channel; approximately 86 percent of the width of the Back Channel at the Project site remains open for navigation by the public. Additionally, the docks will be located relatively close to the shoreline, well within the Lease preempted area, and will be marked so that they are visible from the water. The mooring dolphins also will be set back a substantial distance from the Lease boundary and will be marked so as to be visible from the water. The evidence shows that the Project will not have any adverse effects on the flow of water. As discussed above, the Project will not impede, impound, or otherwise affect the flow of water. The evidence also shows that the Project will not cause harmful shoaling or erosion. No dredging or placement of dredged spoil is proposed or authorized as part of the project, and the Consolidated Authorization requires Workboats to use silt fencing and other specified best management practices to stabilize the sediment and prevent erosion and shoaling during construction of the Project. For these reasons, it is determined that the Project will not adversely impact navigation in the Back Channel, will not adversely affect the flow of water, and will not result in harmful shoaling or erosion. Adverse Effects to Fishing, Recreational Values, or Marine Productivity The Back Channel is a meander of the St. Johns River that no longer is used as the main navigational channel for the river. Thus, it is relatively calm and is extensively used for boating, kayaking, swimming, fishing, jet skiing, and other in- water recreational activities. The evidence establishes that the Project will not adversely affect fishing, recreational values, or marine productivity in the vicinity. The salt marsh habitat in the vicinity of the Project, which serves as the base of the estuarine food chain and as a nursery and refuge for small fish, will not be disturbed during construction of the Project. As such, the Project will not adversely affect fish habitat or marine productivity. Additionally, because the Project will be constructed within the boundaries of the Lease and set back 25 feet from the riparian lines for the adjoining properties, it will not physically interfere with or displace fishing activities from those properties, or from any other property in the vicinity. The Consolidated Authorization imposes conditions to protect water quality during construction and operation of the Project. These conditions, and the additional conditions, discussed in paragraphs 68, 69, and 70, above, will protect water quality, and therefore help protect fish habitat and marine productivity. The credible evidence establishes that vessel operation associated with the Project will not adversely affect boating, kayaking, fishing, or other recreational activities in the vicinity. As discussed above, the Project is located in a slow speed, minimum wake zone that extends 300 feet from the shoreline into the Back Channel, and all vessels traversing into and out of the Lease area must operate at this speed until they are beyond 300 feet from the shorelines. Additionally, Shafnacker credibly testified that once out of the 300-foot slow speed, minimum wake zone, the vessels will operate at speeds such that they will generate a wake of two feet, at most. The evidence showed that wakes of this height are not anticipated to adversely affect recreational activities in the Back Channel. Temporary or Permanent Activity The Project will be permanent. However, the evidence establishes that there are numerous permanent docking facilities along the northern shoreline of the Back Channel, so the Project is not unique in that regard. Adverse Impacts to Significant Historical or Archaeological Resources The Department of State, Division of Historical Resources ("DHR"), did not provide any comments indicating that significant historical or archaeological resources are anticipated to be present at the Project site, and no evidence was presented showing that the Project would have any adverse impacts to such resources. As a precaution, the Consolidated Authorization contains a specific condition requiring Workboats to immediately cease all activities involving subsurface disturbance and to contact DHR if any prehistoric or historic artifacts, such as pottery or ceramics, project points, dugout canoes, metal implements, historic building materials, or any other physical remains that could be associated with Native American, early European, or American settlements are encountered at any time within the Project site. Accordingly, it is determined that the Project will not adversely affect significant historical or archaeological resources. Current Condition and Relative Value of Functions The salt marsh wetlands in the vicinity of the Project are healthy, high-functioning, and part of a "living shoreline" that will not be disturbed by construction or operation of the Project. Although Dock C will be constructed across a very small patch of salt marsh, it will be elevated to reduce shading and will be constructed using minimally-impactful construction techniques. Any impacts to the salt marsh from the Project will be de minimis. The Project is also not anticipated to adversely affect the condition and relative value of the benthic habitat on the Project site. As discussed above, the Consolidated Authorization imposes a minimum 12-inch clearance from vessel bottom to top of submerged resources requirement, which will help prevent physical impact to, and propeller dredging of, the benthic habitat at the Project site. Conditions in the Consolidated Authorization, as well as the conditions addressed in paragraphs 68, 69, and 70, above, also will help protect the current condition and relative value of the salt marsh and benthic habitat on the Project site. Unacceptable Cumulative Impacts to Wetlands and Surface Waters With the conditions currently contained in the Consolidated Authorization, along with the conditions addressed in paragraphs 68, 69, and 70, above, the Project is not anticipated to have adverse water quality impacts. Additionally, as discussed above, the Project is not anticipated to cause adverse impacts to fish, wildlife, protected species, and their habitat. Therefore, with the inclusion of the conditions discussed in paragraphs 68, 69, and 70, above, reasonable assurance has been provided that the Project will not have unacceptable cumulative impacts, in violation of rule 62- 330.302(1)(b). Past Violations of Water and Wetlands Statutes and Rules The City presented evidence consisting of videos and photographs taken from the Wood residence immediately east of Lot 9. These videos and photographs show a variety of activities that are potentially damaging to surface waters and wetlands, including dumping sediment into surface waters from a moored vessel; earthmoving; moving floating docks onto, and off of, the shoreline using heavy equipment; operating heavy equipment in wetlands and surface waters along the shoreline; and mooring boats in extremely shallow water. Wood testified, credibly, that he contacted DEP numerous times, and that DEP occasionally visited Shafnacker's property——typically days after Wood had contacted the agency. Upon inspecting the Workboats site, DEP determined that barges or other equipment or materials had been dragged onto the shoreline without proper authorization, and DEP issued a compliance assistance offer letter to address this noncompliance. DEP ultimately determined that, rather than taking enforcement action for this noncompliance, a salt marsh restoration corrective action requirement should be included in the Consolidated Authorization. The corrective action conditions require Workboats to submit a salt marsh restoration plan and impose restoration plan completion timeframes, success criteria, and monitoring requirements. Given Workboats' noncompliance history, the undersigned determines that in order to provide reasonable assurance that the Project will not violate environmental resource permitting statutes and rules, the conditions addressed above in paragraphs 35, 68, 69, and 70, above, must be included as enforceable conditions in the Consolidated Authorization. Compliance with Chapter 18-21 for Issuance of the Lease For Workboats to be entitled to issuance of the Lease, it must demonstrate, by a preponderance of the evidence, that it will meet the applicable requirements and standards codified in Florida Administrative Code Chapter 18-21 for issuance of a sovereignty submerged lands lease. Water Dependent Activities Rule 18-21.004(1)(g) requires activities on sovereignty submerged lands to be limited to those that are water dependent. A "water dependent activity" is one that can only be conducted in, on, over, or adjacent to water areas because the activity requires direct access to the water body or sovereignty submerged lands for specified activities, including recreation, and where the use of water or sovereignty submerged lands is an integral part of the activity. Fla. Admin. Code R. 18- 21.003(71). The Project's proposed docks, mooring piles, mooring dolphins, and vessel mooring operations are water dependent activities. The Project's primary purpose is the water dependent activity of mooring vessels and the ancillary activity of loading vessels with supplies as part of Workboats' operation. Case law interpreting Florida Administrative Code Chapter 18-21 holds that because the primary purpose of docks and other mooring structures is to moor vessels, they are "water dependent" activities for purposes of rule 18-21.004(1)(g).19/ As discussed in paragraphs 35, 68, 69, and 70, above, a condition should be included in the environmental resource permit and Lease specifically prohibiting any major repair, reconstruction, or maintenance activities within the Lease area, in order to ensure that only water dependent activities are conducted within the Lease area. Resource Management Requirements Rule 18-21.004(2)(a) requires sovereignty submerged lands to be managed primarily for the maintenance of natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming. Additionally, the rule authorizes compatible secondary uses that will not detract from or interfere with these primary purposes. As discussed above, the evidence establishes that the Project, as proposed and conditioned in the Consolidated Authorization, will not adversely affect salt marsh or benthic habitat, will not degrade water quality or cause or contribute to water quality violations, and will not adversely affect fish, wildlife, listed species, and marine productivity. Accordingly, the Project will not detract from, or interfere, with fish and wildlife propagation. The evidence also establishes that the Project will not detract from, or interfere with, traditional recreational uses. As discussed above, the Back Channel is wide enough to accommodate vessels traveling to and from the Project site without detracting from or interfering with recreational activities conducted in the Back Channel. Additionally, vessels traveling to and from the Project site must be operated in accordance with the slow speed, minimum wake zone within the 300-foot shoreline buffer, and will be operated at speeds that will generate a maximum two-foot wake outside of the shoreline buffer. The evidence shows that these speeds will not detract from, or interfere with, traditional recreational uses in the Back Channel. The Project also has been designed, and will be operated, to minimize or eliminate wetland vegetation impacts and impacts to fish and wildlife habitat and cultural resources. Specifically, as discussed above, impacts to the salt marsh habitat have been minimized through the use of minimally- impactful construction techniques and elevating docks four feet above the marsh to reduce shading of the marsh grasses. Additionally, the 12-inch minimum vessel/submerged resource clearance condition will reduce impacts to the benthic habitat in the Lease area. As discussed above, DHR did not provide comments indicating that significant historical or archaeological resources are anticipated to be present at the Project site, and no evidence was presented showing that the Project would have any impacts to such resources. Additionally, the Consolidated Authorization contains a specific condition establishing protocol for Workboats to follow if any specified artifacts are encountered at any time within the Project site. Rule 18-21.004(7)(e) requires that construction, use, or operation of the structure or activity not adversely affect any species listed as endangered, threatened, or of special concern in FWC rules. As discussed above, the Florida Manatee is the only listed species determined to be present the Project site. The Project site is located within an established slow speed, minimum wake zone, and vessels entering and leaving the Project site must comply with this speed limitation within the 300-foot shoreline buffer area. Additionally, the Consolidated Authorization includes several conditions designed to reduce and minimize potential impacts to manatees that may enter the Lease area. Collectively, these requirements and conditions will help ensure that the construction and operation of the Project will not adversely affect manatees. Riparian Rights As part of the Application, Workboats submitted deeds and Disclaimer No. 22146, demonstrating that Shafnacker holds title to lots 6, 7, 8, and 9. These documents constitute "satisfactory evidence of sufficient upland interest," as that term is defined in rule 18.21.003(60). Consistent with rule 18-21.004(3)(d), the Project is proposed to be constructed in the riparian area appurtenant to lots 6, 7, 8, and 9, and all structures that are part of the Project will be set back at least 25 feet from the eastern and western riparian lines for the upland property. No evidence was presented showing that the construction or operation of the Project would unreasonably restrict or infringe upon the riparian rights of adjacent upland owners, in violation of rule 18-21.004(3)(c). It is determined that the Project will not unreasonably infringe on or restrict the riparian rights of adjacent upland riparian owners, so meets the requirements and standards in rule 18-21.004(3) regarding riparian rights. Navigational Hazard For the reasons discussed in paragraphs 102 through 107, above, it is determined that the Project will not constitute a navigational hazard, in violation of rule 18- 21.004(7)(g). However, the inclusion of a condition requiring lighting of the mooring dolphins, discussed in paragraph 106, is recommended to ensure the Project will not constitute a navigational hazard. Lease Fees As part of the Application, Workboats submitted a financial affidavit attesting to its ability to pay the required fees for the Lease, imposed pursuant to rules 18-21.008 and 18-21.011. Not Contrary to the Public Interest Rule 18-21.004 establishes the sovereignty submerged lands management policies, standards, and criteria to be used in determining whether to approve activities on sovereignty submerged lands. The term "public interest" is defined to mean "demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of the proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action." Fla. Admin. Code R. 18-21.003(51). To meet the "not contrary to the public interest" standard in rule 18-21.004(1)(a), it is not necessary that the applicant show that the activity is affirmatively in the "public interest," as that term is defined in rule 18-21.003(51). Rather, it is sufficient that the applicant show that there are few, if any, "demonstrable environmental, social, and economic costs" of the proposed activity. Castoro v. Palmer, Case Nos. 96-0736, 96-5879 (Fla. DOAH Sept. 1, 1998; Fla. DEP Oct. 19, 1998). Here, the City asserts that the Lease is contrary to the public interest because it will cause adverse impacts to benthic and salt marsh habitat; discharge pollutants into the waters of the Back Channel; harm manatees; pose a navigational hazard; and detract from, and interfere with, recreational activities in the Back Channel. However, as discussed above, the evidence shows that the Project has been designed specifically to minimize many of these impacts, and the Consolidated Authorization contains conditions specifically aimed at preventing many of these alleged impacts. As discussed above, other conditions, discussed in paragraphs 68, 69, 70, 106, and 138, also should be included in the Consolidated Authorization to ensure that the Project will not cause adverse impacts to habitat resources, water quality, manatees, and navigation. Case law interpreting the public interest test in rule in 18-21.004(1)(a) applicable to proprietary approvals holds that when proposed structures or activities meet the applicable standards and criteria in chapter 18-21, those structures or activities are presumed to be not contrary to the public interest. See Spinrad v. Guerro and Dep't of Envtl. Prot., Case No. 13-2254 (Fla. DOAH July 25, 2014), modified in part, Case No. 13-0858 (Fla. DEP Sept. 8, 2014); Haskett v. Rosati and Dep't of Envtl. Prot., Case No. 13-0465 (Fla. DOAH July 31, 2013), modified in part, Case No. 13-0040 (Fla. DEP Oct. 29, 2013). Here, Workboats has demonstrated that the Project meets all applicable standards and criteria in chapter 18-21; thus, the Project is presumed to be not contrary to the public interest under rule 18-21.004(1)(a).20/ The City did not present persuasive evidence showing that, on balance, the demonstrable environmental, social, and economic costs of the Project exceed the demonstrable environmental, social, and economic benefits accruing to the public.21/ Accordingly, it is determined that the Project meets the public interest test in rule 18- 21.004(1)(a). Entitlement to Environmental Resource Permit Workboats met its burden under section 120.569(2)(p) to present a prima facie case of entitlement to the environmental resource permit by entering into evidence the Application, Notice of Intent, Consolidated Authorization, and supporting information. Workboats also presented credible, competent, and substantial evidence beyond that required to meet its burden to demonstrate prima facie entitlement to the environmental resource permit. The burden then shifted to the City to demonstrate, by a preponderance of the competent substantial evidence, that the Project does not comply with sections 373.413 and 373.414 and applicable environmental resource permitting rules. For the reasons discussed above, it is determined that the City did not meet its burden of persuasion under section 120.569(2)(p). Accordingly, for the reasons discussed above, it is determined that, with the inclusion of conditions in the Consolidated Authorization addressed in paragraphs 35, 68, 69, 70, and 106, above, Workboats meets all applicable requirements for issuance of the environmental resource permit for the Project. Entitlement to Lease As discussed above, Workboats bore the burden of proof in this proceeding to demonstrate, by a preponderance of the evidence, that the Project meets all applicable statutory and rule requirements for issuance of the Lease. For the reasons discussed above, it is determined that Workboats met this burden, and, therefore, is entitled to issuance of the Lease for the Project. The City's Standing As previously noted, the City is a consolidated municipality and county political subdivision of the State of Florida. The Project is located within the geographic boundary of the City. On or about July 26, 2018, the Council of the City of Jacksonville, Florida, adopted Resolution 2018-499-A, finding that issuance of the environmental resource permit and Lease affects the substantial interests of a significant number of residents in Duval County. The City initiated this proceeding by filing its Petition with DEP on August 17, 2018, alleging that the Project will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the issuance of Consolidated Environmental Resource Permit and Recommended Intent to Grant Sovereignty Submerged Lands Authorization, Permit No. 16-0345934-003-EI, on the terms and conditions set forth in the Consolidated Notice of Intent and attached draft amended Permit No. 16-0345934-003-EI, as modified to include the conditions addressed in paragraphs 35, 68, 69, 70, 106, and 137, above. DONE AND ENTERED this 1st day of March, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2019.
The Issue The issue for consideration in this hearing is whether the Respondent, W. B. Persico, should be issued a permit to construct a commercial marina as described in the Department's Intent to Issue, in Class III waters of the state in Charlotte County, Florida.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Burnt Store Isles Association, Inc., was an association of property owners whose property is located in the Burnt Store Isles subdivision located in Charlotte County, Florida. The applicant, W. B. Persico, is the owner of a piece of property located adjacent to the subdivision and applicant for a permit to construct a marina on his property. The Department of Environmental Regulation is the state agency responsible for the regulation and permitting of dredge and fill activities in the waters of the state. Mr. Persico's property is located on a dead end basin canal in Charlotte County, Florida. The canal is a Class III water but is not classified as an Outstanding Florida Water. On July 31, 1989, Mr. Persico applied to the Department for a permit to construct a 75 slip, 5660 square foot commercial marina on his property within this artificial, dead end basin. Because of objections by the Department to several aspects of the proposed project, on February 27, 1990, Mr. Persico submitted a modification proposal in which he eliminated the use of pressure treated lumber for pilings, substituting concrete pilings; incorporated boat lifts in each slip; reduced the number of slips from 75 to 65; committed himself to installing a sewage pump-out facility at the site; committed to creating an inter-tidal littoral shelf planted with mangroves; agreed to face the existing vertical bulkhead seawall in the basin with rip-rap; and incorporated a commitment to include, as a part of his rental contract, long term agreements prohibiting vessel maintenance and liveaboards on boats at the site, and insuring the perpetual use of boat lifts and pump out facilities provided. He now proposes to market the marina as a condominium ownership operation. The basin in which the Persico project is proposed is 136 feet across at the entrance, (the narrowest point), and 326 feet across at the widest point. The length of the basin is more than 900 feet. The docking structure to be created will have fingers extending no more than 39 feet into the water from the existing vertical seawall. It will have a 4 foot wide walkway parallel to and 10 feet from the existing seawall from which the arms will extend 25 feet into the basin. The basin which is the proposed location for the marina is at the end of the easternmost canal in the Burnt Store Isles subdivision. It is located just west of and parallel to US Route 41, and at the entrance point, joins a perimeter waterway which meanders approximately 1 mile seaward toward a lock which joins that waterway to Alligator Creek which is an Outstanding Florida Water. The waterway from the basin through the lock into Alligator Creek and thereafter to the Gulf provides the only navigable access for most vessels moored in the Burnt Store canals and which would be moored in the proposed marina between Charlotte Harbor and the Gulf of Mexico. The lock which joints the Burnt Store canals to Alligator Creek consists of two hydraulically operated swinging gates which are operated by a boater entering or exiting the canal system. This lock was constructed as a part of a 1973 agreement between Punta Gorda Isles, Inc., a developer, and the state to prevent the construction and runoff polluted waters of the canal from freely mingling with the Outstanding Florida Water in Alligator Creek. The lock is now maintained in an open position from November 15 to May 15 because boaters complained of the inconvenience of having to operate the lock system. Available evidence indicates that a complete passage through the lock, one way when closed, takes 15 minutes. No more than 24 boats can complete a round trip in a 12 hour boating day. When the lock is open there is no appreciable delay. The residential lots which abut the Burnt Store canals are still mostly vacant. The City of Punta Gorda has assumed the responsibility of conducting a 5 year water quality monitoring program which was previously agreed to by Punt Gorda Isles, Inc. when the lock was built. The 1973 agreement was amended in 1984 to permit the operation of the lock in a closed position for an entire year if water quality monitoring should indicate a degradation of water quality in either Alligator Creek of the Burnt Store Isles canals. This has not been necessary. The Petitioners fear that pollution generated by the addition of 65 additional boats moored at and operating from the proposed marina will cause the Department to implement that clause and order the lock to operate from a closed position year round. This does not mean that the lock would not be opened for boats, but that it would be closed when not being used. Petitioners contend that the increased usage would create an intolerable traffic jam at the lock which would, for the most part, make their use of the waterway to the Gulf intolerable. Mr. Persico is a former road and bridge contractor. Though he has never owned a marina, at one time he rehabilitated one in the Chicago area. He has owned the property in question here for four years and now plans to develop a condominium ownership marina. When he decided to do so, he hired Mr. James M. Stilwell, an environmental consultant, to prepare and submit to the Department the application for the required dredge and fill permit. Initial discussions between Mr. Stilwell and the Department dealt with many environmental issues. Mr. Stilwell pointed out that the water in the canal might already be stale and avenues were explored to mitigate that problem. They did not discuss the type of docks to be installed or the potential for destruction of mangrove stands along the seawall, but even though the original plan called for the docks to be placed against the seawall, it was to be done in such a way as not to disturb the mangroves. The modified plan removing the docks to a point 10 feet off from the wall will obviate any damage to the mangroves. Admittedly, the original submittal prepared by Mr. Stilwell contained factors which were considered unacceptable to the Department. These included construction of the finger piers with pressure treated wood. To eliminate possible pollution from leaching, the pressure treated wood was replaced with a floating dock using concrete pilings. Liveaboards, and the potential contamination from that activity, have been prohibited. The provision and required use of a sewage pump-out facility should prevent any escape of polluting sewage into the waters of the basin. The use of power hoists at each slip should prevent pollution from bottom paint leaching, and boat maintenance at the marina is to be prohibited. Fueling of the vessels will not be permitted at the site thereby obviating the potential of polluting fuel spills. The construction of a 10 foot wide littoral shelf, planted with mangroves, between the dock and the sea wall will provide increased water filtration and improve water quality. It would also help the development of the fish and wildlife population and would reduce the flushing time. Air released into the water from the use of the boat lifts should add oxygen and contribute to improved water quality. At the present time, the ambient water quality in the basin, as it pertains to dissolved oxygen, is probably below standards in the lower depths of the basin, and of the outside channels as well, due to poor light penetration. The channel depth is anywhere from 20 to 25 feet. The oxygen level at the bottom is undoubtedly depleted. Mangroves are currently located along 300 feet of the 1,300 foot seawall. Mr. Stilwell's proposal, and that approved by the Department, does not call for removal of the mangroves, but they would be built around or possibly trimmed. Mr. Stilwell is of the opinion that provision for trimming of the mangroves is inherent in the granting of the permit though such permission was not specifically sought. There is no evidence to contradict this thesis. Water quality issues were raised subsequent to the filing of the original application, and the facility as now planned is designed to minimize impacts on the environment as best as can be done. Water quality would be improved, or at worst not adversely affected, by the prohibitions against liveaboards and fueling, the provision of boat lifts and a pump station, and the prohibition against other structures beyond the dock and slips. Flushing of the water is important considering the fact that the dissolved oxygen content in the water is already low. However, Mr. Stilwell is satisfied, and it would so appear, that water quality would be improved by the implementation of the proposals as included in the conditions to the permit. Mr. Stilwell, admittedly, did no dissolved oxygen tests because they were not considered as a part of the permit application. If the Department requests them, they are done, but they were not requested in this case. It is clear that the original application did not address all the environmental concerns that Petitioners feel are pertinent. Nonetheless, those items already discussed were treated, as were turbidity control during construction. As to others of concern to Petitioners, many are included in the state standards and need not be specifically addressed in the application. The Department considered the application in light of the state standards, and by the use of the conditions appended to the Intent to Issue, provided for the water quality and other environmental standards to be sufficiently addressed and met. In his February 22, 1990 letter to the Department, Mr. Stilwell directly addressed the public interest concerns including the mangroves and the construction of the littoral shelf. The Department was satisfied that the public interest criteria were met, and considered the plans to be environmentally sound. They appear to be so. Petitioners have raised some question as to the effect of the 39 foot long dock fingers interfering with navigation within the basin. Mr. Stilwell does not feel that the facility would create this problem, even at the narrowest point, and it is so found. The width of the canal there is 136 feet. The portion of the slip designed to accommodate vessels is no more than 25 feet long, and presumably, vessels of a length much greater than that would not visit the basin. Even subtracting 39 feet from the 136 feet narrow point, 97 feet of turning space remains, and this is almost four times the length of the normal vessel anticipated in the basin. Mr. Stilwell did not address the subject of the lock as it relates to navigation, but primarily as it relates to the impact on water quality and the environment. Nonetheless, he is of the opinion, and there is no evidence to the contrary, that keeping the lock open on a year round basis would not trigger a change to the ongoing program under the agreement between the state and Punta Gorda Isles and result in the lock being closed year round. Mr. Shultz, the environmental specialist with the Department, reviewed the application here initially for file completeness, and when all required information was in, made a site visit. He evaluated the application and the attachments for permitability. For Class III waters, the project must meet water quality standards outlined in the Department's rules. Only one of the water quality criteria, that of dissolved oxygen, was shown to be not met. Since the water was already below that standard, the test to be applied then is whether the project will create some improvement." In Mr. Shultz' opinion, planting the mangroves, as proposed by the applicant, does this, as does the use of the lifts. The existing mangroves will not be impacted by the project as it is proposed, and the use of rip-rap, as proposed, will provide additional surface area for organisms which will improve the water quality. When first reviewed, the Department had some concern about on-water storage of boats. These concerns were treated by the use of hoists to hold the boats out of the water when not in use, and as a result, pollutants will not be introduced by bottom paint leaching and, presumably, bilge pumping. Standard conditions included in all Department Intents to Issue, require the project to comply with applicable state water quality standards or to give assurances that such general standards for surface waters and Class III waters will be met. In this case, Mr. Shultz is satisfied that the applicant has demonstrated that water quality standards will be maintained, and there was no evidence presented by the Petitioners to contradict this. Once water quality standards are shown to be protected, then the project is balanced against the public interest criteria outlined in the statute. Here, the requirement is for a showing that the project is not contra to the public interest. It does not, because of its nature, require a positive showing that the project is in the public interest. In his opinion this project, as modified, will not adversely affect the health, safety and welfare of the public, (it will have no environmental effect on other property). It will not adversely affect the conservation of fish or wildlife in their habitats, (the planting of mangroves will provide a net improvement to species habitat in the area). The project will not adversely affect navigation, flow of water, or erosion, (the width and length of the dock system appear to pose no threat to navigation in the basin and there would appear to be no obstruction or potential therefor as a result of this project; the project is within a no-wake zone; and the size of vessels is limited by the slip size). The permit will not adversely affect marine productivity, (there is currently very little productivity in the area now since waters below 0 depth of 6 feet are already low in oxygen, and the project would, at least minimally, improve this condition). The project is permanent and would not adversely affect historical or archeological resources in the area, (there are no objects or known resources in the area, but a standard condition in the permit requires immediate notification if known resources or objects are found). The project would not adversely affect the current condition and relative value of functions being performed in the area since the area is currently a real estate development which is far from completely built. Based on his consideration of these criteria, Mr. Shultz concludes that the project is not contrary to the public interest and this appears to be a valid conclusion. There appears to be no evidence of sufficient weight, presented by the Petitioners, either through direct evidence or through cross examination of the applicant and Department witnesses that would tend to diminish the credibility of Mr. Shultz' analysis. If there are subsequent violations, the Department has enforcement action available. There is, consistent with the multiple use zoning category applied to the area across the basin from the marina, the potential for up to an additional 100 docks to be constructed in the basin beyond those treated here. Nonetheless, the Department does not consider 165 boats to be a problem either in the basin or at the lock. This is not necessarily a supportable conclusion, however. Those 100 additional docks do not currently exist and their potential should not be considered in determining whether to approve the permit under consideration here. In opposition to the applicant, Mr. Konover and Mr. Forsyth both indicated that the addition of 65 more boats would seriously overtax the operation of the lock and make it difficult, if not hazardous, to operate boats in that area between the Burnt Store Isles subdivision and Alligator Creek. Both individuals agree, and it is so found, that in general, motor boats pollute to some degree the waters on which that are operated as a result of oil leaks from engine operation, leakage of bilge oil, escape of sewage, and leaching of copper paint and other solvents. In addition, manatee have been seen in the area, and the increase of boating operations could present some hazard to the manatee population. There is, however, no indication that a manatee population is permanently in residence there or is even there frequently. It is also accepted that boat wake has an adverse effect on sea walls, and all of these factors should have been and, in fact were, considered in the analysis of the permitability of the project. The concerns of Mr. Konover and Mr. Forsyth were echoed by Mr. Gunderson who, over 30 years operating boats, has seen what he considers to be a definite lack of concern for the environment by many boaters who pump bilges directly into the water, throw debris overboard, and use detergents to wash their boats at marinas. He is of the opinion that renters of slips are generally less concerned about water quality than those who live on the water, and take a more cavalier approach to water quality standards. These sentiments are also held by Mr. Young who, over the years, has owned marinas in Connecticut and has observed the approach of nonowning slip users to the water at their disposal. His concerns could be met by the strict enforcement of standards at the marina. Mr. Powell, a nurseryman who owns the lot across the basin from the site of the proposed marina, fishes from his lot and has observed the an increase of pollution in the canal. He routinely sees floating dead fish, palm leaves, cocoanuts, bottles, slicks and other debris, and though he owns a multifamily lot, would have a difficult time putting in many slips since his lot, at the entrance to the basin at the narrow point, would be across from the slips proposed by applicant and their proximity would, he feels, hinder his ability to build out into the basin as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing Permit No. 081679445, to W. B. Persico as modified and outlined in the Intent to Issue dated March 16, 1990. RECOMMENDED this 9 day of November, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9 day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3093 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted. Accepted but applicable only when the locks are closed. Accepted. - 9. Accepted and incorporated herein. Accepted. & 12. Accepted and incorporated in substance herein. 13. & 14. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contrary to the weight of the evidence. Accepted and incorporated herein. & 19. Accepted and incorporated herein. 20. & 21. Unsupported by convincing evidence of record. Accepted as valid when the lock is operated from a closed position. However, the evidence indicates that currently the lock is left open from November 15 to May 15 of each year and this does not cause delay. Accepted if the lock is operated from a closed position. Unsupported by convincing evidence of record. FOR THE APPLICANT: 1. - 6. Accepted and incorporated herein. 7. - 15. Accepted and incorporated herein. Accepted and incorporated herein. & 18. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. - 32. Accepted and incorporated herein. FOR THE DEPARTMENT: Accepted. and incorporated herein. - 4. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. 10. - 14. Accepted and incorporated herein. 15. - 18. Accepted and incorporated herein. COPIES FURNISHED: Joseph F. Lynch Burnt Store Isles Association, Inc. P.O. Box 956 Punta Gorda, Florida 33951-0956 Michael P. Haymans, Esquire P.O. Box 2159 Port Charlotte, Florida 33949 Cecile I. Ross, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
